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

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20 gin, and income level. • Present and proposed membership by race, color, or national origin, in any planning or advisory body that is part of the program, policy, or activity. 14. USDOT Policy Guidance Concerning Limited English Proficient Persons The USDOT Policy Guidance Concerning Recipient’s Responsibilities to Limited English Proficient (LEP) Persons145 implements at the USDOT level the directives of Title VI of the Civil Rights Act of 1964146 and Executive Order 13166, “Improving Access to Services for Per- sons with Limited English Proficiency,”147 which charged federal agencies with ensuring consistency and cost-effectiveness in assisting individuals with LEP to utilize federal services and programs.148 This guidance recommends that federal recipients assess the number or proportion of LEP persons served or encoun- tered in their service populations149 and the frequency with which LEP persons are encoun- tered in the provision of their services.150 How- ever, the financial resources of the recipient may be a factor in determining the extent of LEP services offered.151 III. TRANSIT EMERGENCY PLANNING PRACTICE GUIDE This Emergency Planning Practice Guide assists transit professionals by: • Summarizing their emergency planning legal obligations. • Describing guidance from the transit and homeland security industries and providing practical implementation advice to fulfill their legal obligations. • Providing two case studies to exemplify how systems implement their planning pro- grams. • Discussing legal issues such as immuni- ties for planning decisions, disaster recovery assistance programs, dealing with security 145 70 Fed. Reg. 74087 (Dec. 14, 2005). 146 42 U.S.C. §§ 2000d et seq. (1964). “[N]o person shall be subjected to discrimination on the basis of race, color, or national origin under any program or activity that receives Federal financial assistance….” 147 65 Fed. Reg. 50121 (Aug. 16, 2000). 148 70 Fed. Reg. 74087, 74089 (Dec. 14, 2005). 149 Id. at 74092. 150 Id. 151 Id. sensitive information (SSI), and developing mutual aid agreements. A. Using Terms: Safety, Security, and Emergency Management After September 11, 2001, both the home- land security and transit industries contem- plated how best to understand and adapt to a new set of challenges. In subsequent years, comprehensive new homeland security pro- grams and guidance were developed, though they were not necessarily coordinated within and across industries. Transit was required to quickly grow and evolve in response to the na- tion’s new emphasis on preparedness. For transit, with a long heritage as a common car- rier to provide safe transport, adding to its mandate the provision of secure services would be an uncomfortable marriage. Security was generally viewed as the domain of local law enforcement or transit police. In addition, transit had to understand its function in catas- trophic planning and how to coordinate into regional incident responses. Ambiguity in the definitions of key transit terms arose, which impacted the understand- ing and implementation of safety, security, and emergency management programs since Sep- tember 11, 2001. For example, in the 1990s, FTA developed and promulgated a substantial regulatory program to oversee transit safety.152 For rail agencies that did not travel on the na- tional railroad network, this was the most comprehensive set of regulations ever to over- see their safety operations and it set a new codified standard by which all transit systems could assess their management programs. As with FTA’s overall programmatic emphasis prior to September 11, 2001, however, there was only a relatively minor State Safety Over- sight (SSO) focus on security issues, which up to that point centered primarily on quality-of- life issues, property, and violent crimes.153 Fire 152 Rail Fixed Guideway Systems; State Safety Oversight, 49 C.F.R. pt. 659 (2013). 153 See M. ANNABELLE BOYD & M. PATRICIA BOYD, TRANSIT SECURITY HANDBOOK 25 (1998) (prepared for and sponsored by the FTA), http://www3.cutr.usf .edu/security/documents/FTA/dot-vntsc-fta-98-3.pdf. Congress never specifically stated that SSO was to include a security component and commenters on the proposed SSO rule objected to its inclusion. FTA ultimately interpreted that “safety” encompassed “security,” stating that it …disagree[s]…with the argument that Congress did not intend section 5330 to include security. Sec- tion 5330(c)(1) states that “[a] State meets the re- quirement of this section if the State—establishes and is carrying out a safety program plan for each

21 response and facility and vehicle evacuations were considered in the realm of transit safety as part of an agency’s overall safety program, along with environmental and occupational health issues. When the SSO program stan- dards were published, the safety and security elements of that program were outlined in this fashion. However, fires and evacuations are issues we now conceptually place within the discipline of emergency management, though there were no explicit delineations between safety and emergency management in the SSO regulations or in the general transit vernacular before September 11, 2001.154 Moreover, after September 11, 2001, due likely to the influence of the pervasive usage of the term “security” by law enforcement and the military, transit be- gan to discuss the enhancement of its “secu- rity” posture, which included consideration for transit’s role in emergency management.155 For example, guidance from FTA in 2003 recom- mended that agencies detail their emergency response activities in a separate “Security and Emergency Management Plan (SEMP)”156 or a “Security and Emergency Preparedness Pro- gram Plan (SEPP)”157 rather than as part of an [rail] fixed guideway mass transportation system in the State.” According to Webster’s Third New Inter- national Dictionary, “safety” means “the condition of being safe; freedom from exposure to danger, exemp- tion from hurt, injury, or loss,” whereas “security” means “the quality or state of being secure: as (a) freedom from danger: safety.” It seems clear, there- fore, that the meaning of safety encompasses the meaning of security. Nonetheless, “security” had, compared with today, a limited scope. 60 Fed. Reg. 67034, 67038 (Dec. 27, 1995). 154 This is not to say transit professionals did not understand the distinction. Commenters on SSO “contended that emergency planning and response procedures were the same for both safety and secu- rity events. Four commenters recommended that FTA include security only when it relates to emer- gency planning and response….” Id. 155 From 2002–2004, this digest’s author was part of one of three consulting teams dispatched nation- ally as part of the FTA’s Top 50 Transit Security and Emergency Management Technical Assistance Pro- gram. “Emergency Management” was not initially in the title of the program. 156 TSA/FTA, Top 20 Security and Emergency Management Action Items for Transit Agencies (2003). Updated list available at http://transit- safety.volpe.dot.gov/security/securityinitiatives/ ActionItems/default.asp. Accessed July 1, 2013. 157 FEDERAL TRANSIT ADMINISTRATION, THE PUBLIC TRANSPORTATION SYSTEM SECURITY AND EMERGENCY PREPAREDNESS PLANNING GUIDE 5 (2003), available at http://www.fta.dot.gov/documents /PlanningGuide.pdf. Accessed July 4, 2013. expanded SSPP, which already discussed is- sues of evacuations and fires. To rail operators who were required to develop an SSPP pursu- ant to SSO, there seemed to be developing an unclear distinction between traditional SSO “safety” elements and the newly developed cri- teria for “security.” FTA would eventually attempt to clarify its program elements. In 2006, FTA promulgated revised rules for SSO. As part of an SSPP, a rail transit system must now specifically dis- cuss its emergency management program.158 While that distinction was made, the revised regulations also mandated that a rail transit system create a separate security plan as well. However, despite these changes, ambiguity lingers. The SSO implementation guidance for the development of an SSO security plan indi- cates that additional assistance can be found in FTA’s 2003 Public Transportation System Se- curity and Emergency Preparedness Planning Guide159 and in the FTA 2006 Resource Toolkit for State Oversight Agencies Implementing 49 CFR Part 659,160 both of which recommend that a system’s emergency management pro- gram be described as well in a separate SEPP. Nonetheless, after over a decade of experience, the terms safety, security, and emergency management are recognized now as separate disciplines in transit planning. Much of the verbal interchangeability be- tween the terms safety, security, and emer- gency management was due to the fact that emergency management is a nexus between the safety and security fields—the three disci- plines form a continuum of activities. For ex- ample, traditional safety personnel deal with fires and evacuations, but security personnel also have public safety functions in a crisis like crowd control and life safety/rescue. Both safety and security personnel have emergency management duties. Unfortunately, “security” is still often used as shorthand for “security and emergency management” issues in major DHS and transit programs, as well as to just denote the areas of law enforcement and intelligence work. As such, where necessary and logical, more care to make clear distinctions between safety, secu- 158 49 C.F.R. § 659.17. 159 FEDERAL TRANSIT ADMINISTRATION, supra note 157, at 5. 160 Federal Transit Administration, Resource Toolkit for State Oversight Agencies Implementing 49 C.F.R. Part 659, at 48 (2006), available at http://www.fta.dot.gov/documents/ResourceToolkit. pdf. Accessed July 4, 2013.

22 rity, and emergency management should be taken to eliminate the potential for confusion. B. Modal Administration Jurisdiction and Compliance Issues Whether and how a particular transit sys- tem is or is not required to plan for emergen- cies is in part determined by which regulatory authority holds sway on a given safety, secu- rity, or emergency management issue. The following three sections are provided to help transit managers and legal counsel navigate various legal parameters for rail, bus, para- transit, and ferry systems. A summary of emergency planning legal requirements is in- cluded at the end of this section. 1. Rail Transit Compliance Issues A loose distinction between the systems FTA and FRA regulate is that the former over- sees inner-city rapid transit systems and the latter has oversight of commuter rail entities that operate on the national railroad network. However, there are historical, legal, regulatory, financial, and jurisprudential parameters that complicate this picture. For example, com- muter railroads receive substantial funding from FTA but are under the safety and security jurisdiction of FRA161 and not subject to FTA’s State Safety Oversight rule.162 However, pur- suant to grant terms and conditions for major capital projects163 and urbanized area formula funding,164 FTA works actively with commuter railroads to ensure safety in design, engineer- ing, construction, and operation, and in the procurement of commuter rail vehicles. Other regulatory issues include: • As per FTA Rail State Safety Oversight regulations, “rail transit” includes modes out- side of those typically thought of as rail opera- tors, including inclined planes.165 • TSA, by its authorizing statute166 and regulations,167 has security oversight over op- erations of systems of both administrations. 161 49 C.F.R. pts. 200–65. 162 49 C.F.R. § 659.5. 163 49 U.S.C. § 5309 (2013). 164 49 U.S.C. § 5307 (2013). 165 49 C.F.R. § 659.5. 166 49 U.S.C. § 114(d)(2) (2013). 167 49 C.F.R. § 1580.201. TSA mandates that any system operating on the national railroad system must appoint a Rail Security Coordinator (RSC). FTA-funded vehicles on the national network via FRA waivers are subject to this regulation. C.F.R. § 1580.201(e) states that the RSC must coordinate • Regulatory waivers (e.g. New Jersey Tran- sit’s River Line operates on Conrail track pur- suant to an FRA waiver). • Legal precedent (e.g. the Port Authority Trans-Hudson system severed connections with the national railroad network but was still adjudicated to be under FRA jurisdic- tion).168 2. Transit Bus and Paratransit System Compliance Issues There are distinctions between buses cov- ered by FTA and those that come under the Federal Motor Carrier Safety Administration (FMCSA). While the latter administration oversees a comprehensive set of mandatory Federal Motor Carrier Safety Regulations (FMCSR), buses funded by FTA are not subject to these regulations, except for Commercial Drivers License requirements169 and in some cases accident report retention require- ments.170 This lack of FMCSA jurisdiction over transit buses is a result of the governmental exception in the FMSCR, which states that “[t]ransportation performed by the federal gov- ernment, a state, or any political subdivision of a state, or agency established under a compact between states that has been approved by the Congress of the U.S…” is not subject to the FMCSR.171 While FTA developed a guidance initiative called the Transit Bus Safety and Security Program (TBSSP) with industry part- ners,172 until 2012, FTA had not been author- ized by Congress to wield regulatory authority over transit buses and paratransit operators with respect to safety and security. With such a vacuum, certain states enacted their own with TSA and appropriate law enforcement and emergency response agencies. 168 For a more thorough discussion of FTA and FRA jurisdictional issues, see SELECTED STUDIES IN TRANSPORTATION LAW, Transit Law, Section 7: Safety 5 (Transit Cooperative Research Program, Transpor- tation Research Board, 2004). 169 49 C.F.R. § 283.23. 170 49 C.F.R. § 390.15. 171 49 C.F.R. § 390.3(f)(2). All states, along with the rest of the FMCSR, adopted this governmental exception rule. See Federal Transit Administration, Transit Bus Safety Program Task 2—Regulations and Oversight 14 (2001), available at http://transit- safety.volpe.dot.gov/Safety/BusTasks/Task2/PDF/ Task2.pdf. Accessed July 4, 2013. 172 Partners included the American Public Trans- portation Association (APTA), Community Transpor- tation Association of American (CTAA), and the American Association of State Highway and Trans- portation Officials (AASHTO).

23 legislation and programs to oversee transit bus safety and security.173 However, on July 17, 2012, MAP-21174 was enacted mandating the Secretary of Transpor- tation to develop a NPTSP, to include: • Safety performance criteria for all modes of public transportation.175 • A standard for the meaning of “state of good repair” for capital assets.176 • Minimum safety performance standards, taking into account NTSB recommendations and best practices.177 • A safety certification training program to develop oversight capabilities.178 • Within 1 year of the rules for the NPTSP being promulgated, each USDOT recipient shall certify or have certified by the state: 1) a requirement that a Board or equivalent entity approve an agency safety plan and updates thereof, 2) methods of identifying and evaluat- ing safety risks, 3) strategies to minimize risk, 4) a process and timeline for conducting an annual review and update of the safety plan, 5) safety performance targets and state of good repair standards, 6) assignment of an ade- quately trained safety officer, and 7) a compre- hensive staff certification training program for operations personnel with continuing educa- tion requirements.179 Recipients may use not more than .5 percent of grant funds to pay not more than 80 percent of the cost of a certification training pro- gram.180 If the Secretary of USDOT does not feel that a recipient is within compliance of the NPTSP, he or she may 1) issue directives, 2) require additional oversight, 3) impose more frequent reporting requirements, or 4) require that fed- eral funds be withheld.181 As safety and security programs have al- ready been developed for rail and ferries, tran- sit bus and paratransit are the only modes without similar regulatory oversight, The NPTSP was, in part, developed to fill this vac- 173 See FLA. STAT. ANN. § 341.061(2)(a), which re- quires the development of system safety and security program plans for transit bus systems. 174 Pub. L. No. 112-141, 126 Stat. 405 (2012). 175 49 U.S.C. § 5329(b)(2)(A) (2013). 176 49 U.S.C. § 5329(b)(2)(B) (2013). 177 49 U.S.C. § 5329(b)(2)(C) (2013). 178 49 U.S.C. § 5329(c) (2013). 179 49 U.S.C. § 5329(d)(1)(A)-(G) (2013). 180 49 U.S.C. § 5329(e)(6)(c)(iv) (2013). 181 49 U.S.C. § 5329(g)(1)(A)-(D) (2013). uum. While NPTSP included major program- matic changes to SSO to ensure independent and efficient oversight of rail transit systems, rules for a bus safety program have yet to be promulgated by USDOT.182 According to FTA, “…while bus safety is also important, rail is where we will be focusing much of our atten- tion at first.”183 In the meantime, guidance for transit bus and paratransit systems is avail- able through FTA’s TBSSP and CTAA’s Certi- fied Safety and Security Officer (CSSO) and Community Transportation Safety and Secu- rity Accreditation (CTSSA) training programs. Moreover, individual state programs in, for example, Florida and North Carolina (the lat- ter described in Case Study 1 below), also pro- vide safety and security guidance to state tran- sit bus systems. 3. Ferry System Compliance Issues Public ferry systems are subject to the most rigorous safety, security, and emergency man- agement oversight requirements of all transit modes. Since the enactment of the MTSA,184 public ferry operators must comply with regu- lar USCG security and emergency manage- ment operational, assessment, planning, and training requirements, as well as periodic maintenance checks by the USCG. Ferries are the only transit mode with direct federal over- sight. Public ferry systems receive federal assis- tance funded through grants and financing from FTA, FHWA, and the Maritime Admini- stration (MARAD).185 FHWA provides most of the capital construction funds for public ferry systems through its highway and discretionary funds. Additionally, FTA can provide ferry sys- tems assistance through its 5307 Urban Area funds to finance planning and capital design 182 Secretary LaHood put transit safety regula- tions before Congress in 2009 and formed the Transit Rail Advisory Committee for Safety (TRACS) to rec- ommend revisions to the oversight process to rail fixed guideway systems. See Federal Transit Admini- stration, TRACS Web site, at http://www.fta.dot. gov/13099.html. Accessed July 4, 2013. No new safety and security performance standards have been promulgated for rail to date that would impact this analysis. 183 Federal Transit Administration, MAP-21 Safety Oversight Questions and Answers, available at http://www.fta.dot.gov/tso_15038.html. Accessed July 4, 2013. 184 Pub. L. No. 107-295, 116 Stat. 2064 (2002). 185 46 C.F.R. § 53702 authorizes the MARAD to make 100 percent obligation guarantees for passen- ger vessels.

24 and construction costs, and to some extent pre- ventive maintenance operating costs. If ferry systems utilize FTA funds, they may be subject to PMP and SSMP requirements pursuant to the FTA’s PMO program and statutory and administrative program requirement triennial reviews by FTA.186 4. Transit Emergency Planning Requirements In general, existing laws, policies, and regu- lations that pertain to transit emergency plan- ning establish broad requirements with few implementation specifics. Applicable laws and regulations primarily mandate the develop- ment of overarching system safety, security, and emergency management programs. They seek to ensure that all transit providers con- sider and deliberate over safety, security, and emergency management issues in a coordi- nated fashion and mandate that these issues are the responsibility of all transit system em- ployees. In Table 3, Emergency Planning Re- quirements, below, the primary planning re- quirements of each transit mode are listed. These requirements broadly mandate the de- velopment of: • Safety, security, and emergency manage- ment objectives. • Safety, security, and emergency manage- ment roles and responsibilities. • Safety, security, and emergency manage- ment committees. • Hazard and threat assessment processes. • Emergency operations plans based on NIMS and ICS. • Training programs based on safety, secu- rity, and emergency operations plans and pro- cedures. • Programs that consider the needs of vul- nerable populations. • Coordinative efforts between transit and key external agencies primarily for regional emergency response. Moreover, the laws, policies, and regulations described above in general do not prescribe the implementation of more specific operational activities. This may be due to the difficulty in addressing: • The spectrum of transit providers, which vary greatly in agency size, scope, and re- sources. • The various environments and circum- stances in which transit systems operate. 186 49 U.S.C. § 5307(f)(2) (2013). • The varied circumstances under which emergency operations may occur. • The fact that in major regional incidents transit systems will not establish incident re- sponse priorities and needs. Rather this is the responsibility of local/regional emergency management, public safety, and law enforce- ment agencies. Incident Commanders will util- ize the existing capabilities of transit to re- spond to an incident and establish incident priorities and operational plans. While transit is recommended to consider the environmental justice impacts of any emergency planning, it must, however, make available to the elderly and disabled any emergency services that it would to the rest of the population. The scope and needs of the latter will be a joint determi- nation between transit and emergency man- agement agencies, including which populations will be addressed in regional plans.187 As such, there are no regulations that, for example, prescribe: • Specific risks a particular agency should consider. • The specific content of security and emer- gency management training transit personnel should receive. • How transit will respond to risks, includ- ing public health crises, or how it will evacuate populations. • How and where transit should establish emergency bus stops and staging areas. • How transit communicates with the public with respect to emergency planning informa- tion. • With whom transit should enter into mu- tual aid agreements. • What standards should be observed to borrow equipment and personnel from other agencies. • What type of equipment must be on-hand for emergencies. 187 State and/or local emergency management agencies are required to maintain special-needs population databases. There are no standardized methodologies for the collection of such data, though emergency management will look to transit’s enroll- ments of the disabled in, for example, a system’s paratransit services. However, the total special-needs populations addressed in a plan may exceed the en- rollment in a transit system’s database, e.g., persons identified as disabled elsewhere but in no need of transit assistance on a daily basis. If a plan specifies transit is responsible for these identified groups, then their obligation begins.

25 Of all the laws and regulations described above, USDOT’s rules regarding the treatment of the disabled on passenger vessels are among the most prescriptive. While other ADA-based rules were promulgated by the USDOT to af- ford reasonable accommodations and prevent discrimination on other modes,188 USDOT’s passenger vessel rules are more narrowly de- fined and pertain specifically to emergency operations. However, these types of rules are the exception rather than the norm. In terms of transit employee duties to re- spond to emergencies, individual state and local emergency management laws and regula- tions authorize a governor or local executive to marshal the services of government employees to respond to a crisis. One area of tension be- tween labor and management in certain at-risk cities, however, is the level of capability and training employees have to address certain risks. Transit unions have argued for manda- tory, industry-wide security awareness train- ing and standards to be established by TSA, but none have been developed to date. More- over, occupational safety questions regarding whether transit personnel should be pressed into emergency service in the face of pandem- ics, biochemical threats, etc., with or without proper training and equipment, exist and have been raised across the industry.189 188 49 C.F.R. pt. 37. 189 Interview with Frank Goldsmith, Transit Workers Union Local 100, Occupational Health Di- rector (Apr. 2, 2012).

26 MANDATORY EMERGENCY PLANNNING REQUIREMENTS MODE LAW/ REGULATION REGULATORY AGENCY DOCUMENT RAIL TRANSIT TRANSIT BUS PARATRANSIT FERRIES COMMUTER RAIL 49 C.F.R. § 659.23 FTA SSPP Yes - - - - U.S.C. § 5329* FTA Safety Plan - Yes Yes - - 49 C.F.R. Part 633.25** FTA PMP/SSMP Yes Yes Yes Yes*** Yes 33 C.F.R. § 104.405 USCG VSP - - - Yes - 33 C.F.R. § 105.405 USCG FSP - - - Yes - 49 C.F.R .§ 230.101 FRA EPP - - - - Yes * Regulations for this program have not yet been promulgated. ** For major capital project of $100,000,000 or more. *** If FTA funding is used and if a major capital project. Ferries are primarily funded by FHWA. SSPP – System Safety Program PMP – Project Management Plan SSMP – Safety and Security Management Plan VSP – Vessel Security Plan FSP – Facility Security Plan EPP – Emergency Preparedness Plan Table 3. Key Emergency Planning Requirements. C. Understanding Emergency Planning Priorities and Resilience By the time USDOT develops its regula- tions, all transit modes will have some type of security and emergency management planning requirements. However, with the constant stream of new programs, recommendations, revisions, and modifications thereto from both DHS and the various USDOT modal admini- strations, it is understandable that a transit professional still may be at a loss to know what his or her obligations are. The plan require- ments listed in Table 3 above constitute great institutional development challenges, and how transit and homeland security programs and policies interact is not easily understood. In general, the laws, policies, and regula- tions described in Section 2 establish broad programmatic mandates and do not provide much practical implementation guidance. For example, it is one thing to develop an SSPP, but it is quite another to understand what an SSPP means to an organization and truly im- plement its policies and operational objectives. In general, there has been confusion: • Understanding guidance from the transit and homeland security industries and how they integrate into transit operations; and • Scaling guidance to varying sized opera- tions and across modes. Documents like the FTA Public Transporta- tion System Security and Emergency Prepared- ness Planning Guide were created to accom- modate the largest and most complex rail systems in the country on the assumption that smaller systems could scale down the guidance to fit their circumstances. However, to build a program, a small- to medium-sized agency with 3– 4 key managers would first have to filter through over 100 pages of such guidance. Then, such transit managers would have to consider what it means when they are advised to build plans and capabilities for various spe- cific and probable threat scenarios, and yet somehow still be flexible and prepared enough for the catastrophically unlikely.190 Given such 190 Terrorism is a rare occurrence…[a] bus or rail super- visor may experience only one of these events in his or her entire career. Given this lack of frequency, it is difficult to expect competency in these highly charged situations. Yet, the consequences of poor decision-making in response to

27 commonly heard advice after September 11, 2001, interpreting guidance is at minimum a daunting task and at worst a disincentive to start preparations. Unfortunately, many have looked upon these homeland security planning issues and requirements narrowly as unfunded mandates or “check-the-box” tasks to fill in templates rather than seeing them for what they truly are: exercises in risk management. Contempo- rary transit planning has its roots in Military Standard system safety191—philosophies and coordinated processes by which risks in opera- tions, systems, and equipment can be identi- fied, eliminated, mitigated, or accepted. Across key guidance in both industries, whether it comes from USDOT, DHS, TSA, FEMA, the National Fire Protection Association (NFPA), or APTA, all primary recommendations from these groups are founded upon the principles of continual assessment and improvement. Whether an emergency management planning requirement applies to an agency or not, it nonetheless behooves transit managers to ex- amine their systems from time to time to un- derstand how they organize and function and assess strengths and weaknesses. By deliber- ately building a program that encourages feed- back and training to minimize risk and cost, transit stands to benefit from an enhanced scope and quality of safety, security, and emer- gency management capability and programs. To assist transit managers in meeting the mandates of the USDOT modal administra- tions and complying with guidance and re- quirements of the homeland security industry, this section will: 1. Delineate transit’s and external agency pre- paredness responsibilities and obligations for large-scale emergencies. 2. Discuss the assessment of transit’s resilience for large-scale emergency operations. 3. Assist transit managers in preparing for large-scale emergency operations. extraordinary events are grave. Unless adequate prepara- tion is provided, transportation personnel may be unable to mobilize effectively to manage critical incidents on their systems and to support community response when most needed. Federal Transit Administration, supra note 157, at 2. 191 FTA’s State Safety Oversight program was built upon Military Standard 882B (replaced in 2012 with 882E, available at http://www.system- safety.org/Documents/MIL-STD-882E.pdf). See also DOT/FTA Rail System Guideway Systems; State Safety Oversight. Accessed July 4, 2013. The ultimate goal of this section is to isolate the essential planning elements from both the transit and homeland security industries to instruct transit managers on how to think about building emergency management capa- bility and functions. Where helpful, it will point to specific sections of selected guidance documents for managers to investigate issues more thoroughly and search for ideas and clari- fications. At the end of this section, two case studies are presented to provide readers with real-life applications of the elements identified and discussed. 1. Transit’s Preparedness Obligations for Large-Scale Emergencies To understand the roles and obligations of transit to prepare for large-scale events, one must first understand the core principles of the NRF upon which the mechanics of it are built.192 The essence of the NRF emanates from a set of principles collectively called “response doc- trine.” As stated in the NRF, “[r]esponse doc- trine is rooted in America’s federal system and the Constitution’s division of responsibilities between federal and state governments.”193 Response doctrine defines basic roles, respon- sibilities, and operational concepts for prepar- edness across all levels of government to save lives and protect property and the environ- ment. Five key principles of operations consti- tute the national response doctrine:194 • Engaged partnership—active communica- tion, shared situational awareness, planning and training with key local, state, regional, tribal, and/or federal stakeholders. • Tiered response —incidents begin and end locally, and frontline personnel and organiza- tions are to be supported by successively higher levels of government as resource needs cannot be met at individual levels. • Scalable, flexible, and adaptable opera- tional capabilities—command structures and resource supplies and allocations should surge or wane depending on circumstances. 192 For a thorough discussion of the NRF and how transit is integrated into a national response, see PUBLIC TRANSPORTATION EMERGENCY MOBILIZATION AND EMERGENCY GUIDE, 7 PUBLIC TRANSPORTATION SECURITY (TCRP Report 86, §§ 2–3, Transportation Research Board, 2005). 193 The National Response Framework 8, available at http://www.fema.gov/national-response- framework. Accessed July 4, 2013. 194 Id. at 9.

28 • Unity of effort through unified command— each level and element of government will have its individual command structure established to marshal its own personnel, equipment, and supplies and have the capability to integrate into larger multi-agency commands. • Readiness to act—having a “forward- leaning posture”195 built upon strategies, pro- cedures, training, and communications. The NRF created the overall national struc- ture under which federal, state, and local agencies must operate and coordinate. Being rooted in the Constitution’s theory of separa- tion of powers, each state must coordinate its resources and provide strategic guidance needed to prevent, mitigate, prepare for, re- spond to, and recover from all hazards. States will establish laws and regulations to develop an emergency management structure. As the state coordinates with federal level agencies, local communities will coordinate with the state in a complementary fashion. Accordingly, as FEMA communicates with and marshals federal assets and resources for a state emer- gency management agency, the state emer- gency management agency will communicate with and coordinate resource collection and distribution for its local communities through local offices of emergency management. Therefore, each state has enacted its own set of legislation to create emergency manage- ment structures and processes. Each state emergency management agency is charged with a planning function to build disaster readiness capabilities and marshal state and local assets, including public employees. A state emergency statute will mandate that a disaster plan be developed and may identify measures to coordinate resources and person- nel during and after major incidents.196 States mandate that such plans identify risks, rec- ommend disaster prevention and mitigation projects, and indicate revisions for safety and zoning codes.197 Plans should also describe key operational planning objectives for activities like evacuations, the identification and move- ment of persons with special needs and pets, and ingress and egress into disaster areas.198 Moreover, states are mandated to provide as- sistance to localities to develop their own plans and objectives, assess risk, identify capabili- ties, and coordinate activities among local gov- 195 Id. at 11. 196 See N.Y. EXEC. LAW art. 2B, § 22b(1) and (2). 197 Id. § 22b(3)(a). 198 Id. § 22b(3)(b). ernment resources and assets in conjunction with state objectives.199 In turn, localities are encouraged to build their own emergency man- agement structures, plans, and capability.200 These laws that outline the role in emergency planning for states and localities create an ob- ligation for them to coordinate with local tran- sit systems. Pursuant to state disaster plans, state and local emergency management agen- cies are charged with working with local tran- sit systems to coordinate objectives to address identified risks. From a transit manager’s per- spective, though there is no question that tran- sit has a role in regional emergencies like evacuations, these are not planning issues that pertain to their everyday missions. In general, transit agencies will plan for the movement of the disabled, deal with LEP persons, and re- spond to major transit disruptions such as a loss of a substation, switches, or a yard, among others, to the extent to which their authorizing legislation to run safe and secure service ne- cessitate.201 However, transit is not mandated to develop the priorities or objectives of re- gional disaster plans that impact the opera- tions of numerous agencies. Rather, it is legis- latively the responsibility of state and local governments to do so while taking into account the existing capabilities of transit. To the ex- tent additional resources, beyond the needs to execute transit’s basic mission, are necessary for transit to carry out these emergency man- agement objectives, transit systems may or may not enhance their capabilities to meet those objectives depending on the cost or diffi- culty. To ensure that the most efficient use of transit’s resources are made, or if assistance can be provided to transit to enhance its capa- bilities, transit should be consulted so that emergency planners may benefit from their opinions, experience, and advice. This last point should not be taken for granted, as it is not at all uncommon for transit systems to be named in state and local plans and never have been consulted with regard to their capabilities or to inform them of local emergency objec- tives.202 As response doctrine requires, coordi- 199 Id. § 22b(3)(a). 200 Id. § 23. 201 As well as the programs and parameters that activate them from FTA and funding streams, among others. See § 3b. herein. 202 A finding in The Role of Transit in Emergency Evacuation, TRB Special Report 294, at 70 (2008), was that the “majority of the emergency operations plans for large urbanized areas are only partially

29 nation with transit by state and local emer- gency management agencies should occur to assist transit in understanding planning objec- tives and to determine how transit’s capabili- ties and assets can be utilized to build a stronger regional preparedness program. Pursuant to state disaster plans, state and local emergency management agencies are charged with working with local transit systems to coordinate objectives to address identified risks. However, transit is not mandated to develop the priorities or objectives of these regional disaster operations. Rather, it is legislatively the responsibility of state and local governments to do so while taking into account the existing capabilities of transit. 2. Assessing Transit’s Resilience for Large-Scale Emergencies Presidential Policy Directive 8: National Preparedness (PPD-8) describes the nation’s approach to preparing for threats and hazards. It mandated that an NPG be developed by DHS based on identified risks from specific threats and vulnerabilities. The NPG would identify core capabilities necessary to prepare for such risks and help guide the domestic efforts of all levels of government.203 An NPG was developed in 2011. Among the 32 core capabilities listed, “Critical Transporta- tion” is defined as to the ability to “[p]rovide transportation (including infrastructure access and accessible transportation services) for re- sponse priority objectives, including the evacuation of people and animals, and the de- livery of vital response personnel, equipment, and services into the affected areas.”204 The resiliency of transportation is also part of the NPG as described in the core capability “Infra- structure Systems” task to “[d]ecrease and sta- bilize immediate infrastructure threats to…evacuation processing centers with a focus on life-sustaining and congregate care ser- sufficient in describing in specific and measurable terms how a major evacuation could be conducted successfully, and few focus on the role of transit.” 203 PPD-8, para. 2 (2011), available at http://www.dhs.gov/presidential-policy-directive-8- national-preparedness. Accessed July 5, 2013. 204 Department of Homeland Security, The Na- tional Preparedness Goal, at 12 (2011), available at http://www.dhs.gov/presidential-policy-directive-8- national-preparedness. Accessed July 5, 2013. vices.”205 (Note: PPD-8 and the NPG together constitute another mandate for state and local government to set objectives for disaster trans- portation operations and coordinate with tran- sit.) While essentially the same as the directive that PPD-8 superseded, HSPD-8, it differed from its predecessor in that rather than focus- ing on capability building in relation to various scenarios, preparedness now meant looking at the general resilience of an entity’s essential functions.206 Prior to the release of the NPG, DHS recommended framing risk assessments nationally within 15 National Planning Sce- narios (NPS), most of which were catastrophic terrorism events.207 However, assessing risk in relation to specific threat or hazard scenarios may hamper a risk and capabilities analysis. The FEMA Comprehensive Preparedness Guide 101 describes the problem: Planners must keep in mind that hazard or threat lists pose two problems. The first is ex- clusion or omission. There is always a potential for new and unexpected risks (part of the reason why maintaining an all-hazards, all-threats ca- pability is important). The second is that such lists involve groupings, which can affect subse- quent analysis. A list may give the impression that hazards or threats are independent of one another, when in fact they are often related (e.g., an earthquake might cause dam failure). Lists may group very different causes or se- quences of events that require different types of responses under one category. For example, “Flood” might include dam failure, cloudbursts, or heavy rain upstream. Lists also may group a whole range of consequences under the category of a single hazard. “Terrorism,” for example, could include use of conventional explosives against people or critical infrastructure; nuclear detonation; or release of lethal chemical, bio- logical, or radiological material.208 205 Id. at 13. 206 Jared T. Brown, Presidential Policy Directive 8 and the National Preparedness System: Background and Issues for Congress, at 4, CRS R-42073 (Oct. 21, 2011), available at http://www.fas.org/sgp/crs/ homesec/R42073.pdf. Accessed July 5, 2013. 207 Department of Homeland Security, National Planning Scenarios (2006). The NPS were developed pursuant to the precursor to the NPG, the National Planning Guidelines, available at https://secure. nccrimecontrol.org/hsb/planning/Planning%20 Documents/National%20Planning%20Scenarios% 202006.pdf. Accessed July 5, 2013. (Document on Internet marked as “For Official Use Only.”) 208 FEDERAL EMERGENCY MANAGEMENT AGENCY, DEVELOPING AND MAINTAINING EMERGENCY OPERATIONS PLANS: COMPREHENSIVE PREPAREDNESS GUIDE 101, at 4-10 (2010), available at http://www.

30 This issue can be exemplified in how some rail transit risk assessments are conducted today. Pursuant to FTA’s Rail Transit State Safety Oversight program, rail transit engi- neers and planners must assess the safety im- pacts of hazards that may debilitate a system or operations in the Preliminary Hazard As- sessment (PHA) review process. This is often a separate exercise from the security and emer- gency management Threat and Vulnerability Assessment (TVA) process. This bifurcation in the full risk assessment process for a rail tran- sit system (a PHA for the SSPP and a TVA for the System Security and Emergency Prepared- ness Plan) may be a contributing factor as to why some rail engineers and planners defer TVA analyses to “security experts.” However, many issues that “safety” engineers and plan- ners assess can be looked at from a security and emergency management perspective for a TVA—from both perspectives, the resulting disruptive outcomes are the same just with different causes. For example: • A catenary support pole can be toppled by an improvised explosive device meant for nearby passengers as well as by an errant truck. • Flash floods or tropical storms indicated in a state’s Hazard Mitigation Plan can cause track flooding similar to those conditions caused by a sewer or water main break. • Loss of communications due to a malicious act serves to similarly impact emergency com- munications and service dispatch as a fallen tree limb might. This is not to say there are no issues for which advanced security architecture, engi- neering, and operations knowledge is necessary or helpful. Rather, that enhanced guidance could serve to demystify for transit profession- als some of the homeland security domain and offer planning efficiencies. More importantly, in terms of assessing risk and capabilities, it could steer planners to assess core functions, disruptions, and causes in a more holistic fash- ion. Thus, if the NPG has designated transit’s core functions for state or city emergency plans—transporting people, animals, and equipment—a transit professional must then assess what a system’s Mission Essential Functions (MEF) are to be ready to execute its core functions. A transit manager can seek to comply with the resilience objectives espoused fema.gov/pdf/about/divisions/npd/CPG_101_V2.pdf. Accessed July 5, 2013. by PPD-8 and the NPG by following the rec- ommendations in continuity planning. The Transit Cooperative Research Program’s (TCRP) Continuity of Operations (COOP) Planning Guidelines for Transportation Agen- cies explains: COOP planning ensures that the transportation agency has a process to manage events that dis- rupt the agency’s internal operations or that deny access to important locations within the agency’s service area. Under certain disruptive conditions, the transportation agency cannot perform its normal business activities. There- fore, COOP plans specify the minimum activi- ties that will be performed by the transporta- tion agency—no matter what the emergency or how it affects the agency’s service area. These minimum activities are called essential functions because they are the most important activities necessary to restore the internal ca- pabilities of the transportation agency; to sup- port emergency responders and emergency management agencies; and to ensure the safety and protection of the transportation system’s users, personnel, contractors, and vendors. In COOP planning, whether the emergency is the result of natural or human-caused events, an all-hazards approach ensures that essential functions will continue.209 For transit, in relation to meeting the goals and objectives of PPD-8, the NPG, and state and local emergency plans, the question is, “can transit operations stay up and running at a capacity to meet the objectives of a response and recovery?” Analyzing the MEF of transit operations is the key to answering this ques- tion. Following the Comprehensive Prepared- ness Guide’s and the TCRP’s recommendations, transit systems should focus on: • Identifying core operational functions, and then • Identifying potential disruptions and po- tential sources of such disruptions to these functions. To accomplish this, planners should first identify those operational factors without which transit would lose the ability to ade- quately carry on to meet the objectives of a local response or recovery. A transit planner 209 ANNABELLE BOYD, JIM CATON, ANNE SINGLETON, PETER BROMLEY & CHUCK YORKS, 8 TRANSPORTATION SECURITY, CONTINUITY OF OPERA- TIONS (COOP) PLANNING GUIDELINES FOR TRANSPOR- TATION AGENCIES 3 (Transit Cooperative Research Program Report 86/National Cooperative Highway Research Program Report 525, Transportation Re- search Board, 2005).

31 could break down operations into parts, and begin assessing strengths, weaknesses, and interdependencies. A sample breakdown is as follows: Mission Essential Functions Communications Transport Maintenance Management/ Administration Cell phones Vehicles Facilities Executives Radios Yards Yards IT Repeaters Track Equipment Procurements Cell towers Signals Parts Admin staff Internet Power systems Fuel Safety Operators Maintainers Security Supervisors Cleaners Dispatchers Stations Facilities Bridges Tunnels SCADA systems Fuel Table 4. Mission Essential Function Chart Sample. Charts like these can be extremely helpful assessment tools to open a dialogue among management and operational departments. Once an MEF list is produced, transit managers can determine what causes may disrupt them. A sample set of causes may include: Causes for Disruption of Services Naturally Occurring Human-Caused/Intentional Human- Caused/Unintentional Tornadoes Misuse of resources IT failures High winds Security breaches Unavailability of personnel Electrical storms Theft Power outages Ice storms Fraud or embezzlement Water outages Snowstorms Arson Fuel outages Floods Vandalism HVAC failures Earthquakes Sabotage SCADA failures Epidemics Workplace violence Damage to equipment Landslides Bomb threats and other forms of terrorism Contamination of equipment Hurricanes Labor disputes Inadequate training Typhoons Disruption of supplies Tropical storms Civil disorder Tsunamis War Wildfires Hostage taking Droughts Hijacking Dust/wind storms Table 5. Causes for Disruption Chart Sample.

32 Reviewing agency operations and functions to ensure that transit can perform and meet the objectives of a local emergency plan is clearly not a simple matter. It requires a seri- ous and deliberate attempt to critique the utili- zation of resources and operations. Once this risk assessment has been conducted, transit managers can discuss internally and with local stakeholders the status of their capability and ability to meet the objectives of a local emer- gency plan. Next, an agency can assess how it wants to address identified risks. It must make a thorough attempt at identifying issues and decide whether to accept risks, or attempt to mitigate or eliminate them.210 (Lack of thor- oughness in this process may raise legal is- sues.)211 Depending on how an agency decides to act, these determinations may include deci- sions to build or enhance physical infrastruc- ture, develop plans and procedures, and/or cre- ate training programs, among others, possibly with the assistance from local stakeholders if it helps meet the objectives of a local or state plan. By engaging in this process, transit man- agers will work towards meeting their obliga- tions to the locality, state, their employees, and the riding public, and to manage risk. 3. Preparing Transit for Large-Scale Emergencies Another one of the five mandates of the NRF response doctrine speaks to all levels of government being ready to act. The results of a risk assessment process described above will be the transit manager’s roadmap for program- matic fortification and resiliency efforts. The common principle linking the core philosophies of the homeland security and transit industries is the commitment to a systems approach to continual improvement and assessment. The FEMA “preparedness cycle” is an important element of its programmatic guidance to bol- ster national preparedness. It was developed in response to HSPD-5’s mandate to develop a framework for preparedness to respond to, re- cover from, and mitigate against natural disas- ters, acts of terrorism, and threats and haz- ards. NIMS defines preparedness as "a continuous cycle of planning, organizing, train- 210 For a more thorough explanation of the risk assessment process, see FEDERAL EMERGENCY MAN- AGEMENT AGENCY, RISK MANAGEMENT SERIES, 426: REFERENCE MANUAL TO MITIGATE POTENTIAL TERRORIST ATTACKS AGAINST BUILDINGS (2003), available at http://www.fema.gov/library/viewRecord. do?id=1559. Accessed July 5, 2013. 211 See Bordelon v. Gravity Drainage District No. 4, 74 So. 3d 766, 2011 La. App. LEXIS 1136 (2011). ing, equipping, exercising, evaluating, and tak- ing corrective action in an effort to ensure ef- fective coordination during incident re- sponse."212 While infrastructure improvements are vital to building resilience, this section will discuss the operational planning issues mandated by the modal administrations and by DHS. The following two sections will discuss the impor- tance of developing 1) plans and procedures, and 2) training and exercise programs. a) Plans and Procedures.—The FEMA prepar- edness cycle could easily be used to represent the system safety and security approach pro- moted by the FTA and APTA as they share the same approach to management. The primary tools of APTA and the FTA to assist transit systems in organizing for continual improve- ment are the SSPP and SEPP. (See the full set of SSPP parameters in Table 6, below.) The templates for these documents should be viewed as an organization’s risk checklist, starting with policies, goals and objectives, and structure of the management organization. The priorities and culture of an organization begin with the ideas and actions of the executive management. If management wants to under- stand the resiliency of MEF, it will undertake a critical, thorough, and deliberate review of as- sets and processes of the organization. How- ever, SSPP and SEPP are primarily descriptive documents—transit systems are required to itemize and describe the processes by which safety and security goals and objectives will be met. There is great value in this alone in that transit systems must consider how to imple- ment these programs if they already have not, and how to develop them if they have not yet. To develop these programs, the SSPP and SEPP require transit systems to determine and outline the roles and responsibilities of primary functions of the organization, including who is responsible for each program element and es- sential activity listed in the SSPP or SEPP. 212 Federal Emergency Management Agency, Na- tional Incident Management System, at 145 (2008), available at http://www.fema.gov/national-incident- management-system. Accessed July 5, 2013.

33 FTA FIXED GUIDEWAY RAIL STATE SAFETY OVERSIGHT PROGRAM AREAS NO. SSPP ELEMENT CONTENTS 1 Policy Statement and Authority for SSPP A policy statement signed by the agency’s chief executive that endorses the safety program and describes the authority that establishes the SSPP. 2 Goals and Objectives A clear definition of the goals and objectives for the rail transit agency safety program and stated management re- sponsibilities to ensure that they are achieved. 3 Overview of Management Structure An overview of the management structure of the rail transit agency, including (i) an organization chart; (ii) a description of how the safety function is integrated into the rest of the rail transit organization; and (iii) clear identifica- tion of the lines of authority used by the rail transit agency to manage safety issues. 4 SSPP Control and Update Procedure The process used to control changes to the SSPP, includ- ing (i) specifying an annual assessment of whether the SSPP should be updated; and (ii) required coordination with the oversight agency, including timeframes for submission, revision, and approval. 5 SSPP Implementation Activities and Responsibilities A description of specific activities required to implement the system safety program, including (i) tasks to be per- formed by rail transit agency safety function, by position and management accountability, specified in matrices and/or narrative format; and (ii) safety-related tasks to be performed by other rail transit agency departments, by po- sition and management accountability, specified in matrices and/or narrative format. 6 Hazard Management Process A description of the process used by the rail transit agency to implement its hazard management program, in- cluding activities for (i) hazard identification; (ii) hazard investigation, evaluation, and analysis; (iii) hazard control and elimination; (iv) hazard tracking; and (v) requirements for ongoing reporting to the oversight agency regarding hazard management activities and status. 7 System Modification A description of the process used by the rail transit agency to ensure that safety concerns are addressed in modifications to existing systems, vehicles, and equipment that do not require formal certification but which may have safety impacts. 8 Safety Certification A description of the safety certification process required by the rail transit agency to ensure that safety concerns and hazards are adequately addressed prior to the initiation of passenger operations for New Starts and subsequent major projects to extend, rehabilitate, or modify an existing sys- tem or to replace vehicles and equipment. 9 Safety Data Collection and Analysis A description of the process used to collect, maintain, analyze, and distribute safety data, to ensure that the safety function within the rail transit agency receives the information necessary to support implementation of the system safety program. 10 Accident/Incident Investigations A description of the process used by the agency to per- form incident notification, investigation, and reporting, in- cluding (i) notification thresholds for internal and external organizations; (ii) investigation process and references to procedures; (iii) the process used to develop, implement, and track corrective actions that address investigation findings; (iv) reporting to internal and external organizations;

34 FTA FIXED GUIDEWAY RAIL STATE SAFETY OVERSIGHT PROGRAM AREAS NO. SSPP ELEMENT CONTENTS and (v) coordination with the oversight agency. 11 Emergency Management Program A description of the process used to develop an approved, coordinated schedule for emergency management program activities, which include (i) meetings with external agencies; (ii) emergency planning responsibilities and requirements; (iii) process used to evaluate emergency preparedness, such as annual emergency field exercises; (iv) after action reports and implementation of findings; (v) revision and distribu- tion of emergency response procedures; (vi) familiarization training for public safety organizations; and (vii) employee training. 12 Internal Safety Audits A description of the process used to ensure that planned and scheduled internal safety audits are performed to evaluate compliance with the SSPP, including (i) identifica- tion of departments and functions subject to review; (ii) re- sponsibility for scheduling reviews; (iii) process for conduct- ing reviews, including the development of checklists and procedures and issuing of findings; (iv) review of reporting requirements; (v) tracking the status of implemented rec- ommendations; and (vi) coordination with the oversight agency. 13 Rules Compliance A description of the process used by the agency to de- velop, maintain, and ensure compliance with rules and pro- cedures having a safety impact, including (i) identification of operating and maintenance rules and procedures subject to review; (ii) techniques used to assess the implementation of operating and maintenance rules and procedures by em- ployees, such as performance testing; (iii) techniques used to assess the effectiveness of supervision relating to the im- plementation of operating and maintenance rules; and (iv) the process for documenting results and incorporating them into the hazard management program. 14 Facilities and Equipment Inspections A description of the process used for facilities and equipment safety inspections, including (i) identification of facilities and equipment subject to regular safety-related inspection and testing; (ii) techniques used to conduct in- spections, and testing; (iii) inspection schedules and proce- dures; and (iv) a description of how results are entered into the hazard management process. 15 Maintenance Audits and Inspections A description of the maintenance audits and inspections program, including identification of the affected facilities and equipment, maintenance cycles, documentation re- quired, and the process for integrating identified problems into the hazard management process. 16 Training and Certification Program for Employees and Contractors A description of the training and certification program for employees and contractors, including (i) categories of safety-related work requiring training and certification; (ii) a description of the training and certification program for employees and contractors in safety-related positions; (iii) the process used to maintain and access employee and con- tractor training records; and (iv) the process used to assess compliance with training and certification requirements. 17 Configuration Management and Control A description of the configuration management control process: (i) the authority to make configuration changes, (ii) process for making changes, and (iii) assurances necessary for all involved departments to be formally notified.

35 FTA FIXED GUIDEWAY RAIL STATE SAFETY OVERSIGHT PROGRAM AREAS NO. SSPP ELEMENT CONTENTS 18 Local, State, and Federal Requirements A description of the safety program for employees and contractors that incorporates the applicable local, state, and federal requirements, including (i) safety requirements that employees and contractors must follow when working on, or in close proximity to, agency-controlled property; and (ii) the process for ensuring that the employees and contractors know and follow the requirements. 19 Hazardous Materials Program A description of the hazardous materials program includ- ing the process used to ensure knowledge of and compliance with the program requirements. 20 Drug and Alcohol Program A description of the drug and alcohol program and the process used to ensure knowledge of and compliance with program requirements. 21 Procurement Process A description of the measures, controls, and assurances in place to ensure that safety principles, requirements, and representatives are included in the rail transit agency pro- curement process. Table 6. FTA Rail State Safety Oversight SSPP Program Areas. The challenge of implementing a program described in a transit SSPP is the same for any organization in any field. The difficulty is in making a utilitarian, holistic, frank, and le- gitimized process that is led from the top and enforced throughout an organization. In terms of emergency planning, the SSPP and SEPP are documented representations that a transit system has its house in order to manage itself and its resources under exigent circumstances and that it can coordinate with external agencies. An Emergency Operations Plan (EOP) is the next level of planning for transit systems (see Appendix D for a sample EOP). If an SSPP and SEPP represent how a transit system organ- izes and manages itself, then an EOP (which should be listed in an SEPP) identifies and describes an organization and its objectives, and its roles and responsibilities for emergency operations. An EOP should:213 • Assign responsibility to departments and individuals to carry out specific actions that exceed routine responsibility at projected times and places during an emergency. • Set forth lines of authority and organiza- tional relationships and show how all actions will be coordinated. • Describe how people (including individu- als with disabilities, others with access and functional needs, and individuals with limited 213 FEDERAL EMERGENCY MANAGEMENT AGENCY, supra note 208, at 3-1. English proficiency) and property are ad- dressed, handled, and protected. • Identify personnel, equipment, facilities, supplies, and other resources available inter- nally or externally by agreement or other ar- rangement. An EOP must be flexible enough for use in all emergencies. A complete EOP should de- scribe:214 • The purpose of the plan. • The situations, assumptions, and re- sources for emergency operations. • Organization and assignment of responsi- bilities for emergencies, organized in a NIMS- compliant fashion. • Administration and logistics. • Plan development and maintenance. • Authorities and references. • If possible, specific hazard plans and asso- ciated procedures. As indicated above, any emergency organ- izational structure should be based on NIMS. While this section will not provide an analysis of NIMS and how it should be applied,215 it is 214 Id. 215 See Federal Emergency Management Agency, National Incident Management System (2008), avail- able at http://www.fema.gov/national-incident- management-system (Accessed July 5, 2013), and JOHN N. BALOG, ANNABELLE BOYD, JIM CATON, PETER N. BROMLEY, JAMIE BETH STRONGIN, DAVID CHIA & KATHLEEN BAGDONIS, PUBLIC TRANS-

36 important to note that the ICS portion of NIMS is a personnel organizational tool. ICS provides a method to organize a transit system’s per- sonnel to manage incidents. Figure 2. NIMS Incident Command System Template. An important issue in implementing ICS is that, as an organizational tool, it is more rele- vant for larger agencies with multiple depart- ments and numerous personnel and in inci- dents of longer durations and scale. For example, for a transit system that has one to five managers who assume multiple tasks of the operation (as is common among the pre- ponderance of transit systems in the United States), ICS has less value as assistive guid- ance. However, while there is no exact “tipping point” where it begins to have value, in general as an organization grows in scale, so does the utility of ICS as a tool. In terms of working within an ICS during an emergency response or recovery, though, the key area for efficiency in operations and compliance with NIMS and ICS is that every transit system must appoint a liaison to interface with external agencies and with an Incident Commander. Moreover, while FEMA instructs that ICS is a flexible tool, it is not often understood that ICS actually can be molded to fit an organization of any size. Again, in some agencies, one or two people may be responsible for all functions on the ICS chart. In other organizations, during events or periods of responses and recovery, certain func- tions may be less necessary or functions may be melded or expanded. The basic template in PORTATION EMERGENCY MOBILIZATION AND EMERGENCY OPERATIONS GUIDE, 7 PUBLIC TRANSPORTATION SECURITY, § 3 (Transit Cooperative Research Program Report 86, Transportation Re- search Board, 2005), for more information on apply- ing NIMS in EOP. Figure 2 is simply that, a template to be al- tered and adjusted as necessary to assist or- ganizations and circumstances.216 For example, a single person may become the planning and operations chief, and someone else may become the logistics/finance chief in a smaller organi- zation. A final note on plan and procedures devel- opment: documents such as these should not only be important tools to instruct and teach upon, but they should be useful. It would not be an exaggeration to say that plans and proce- dures are often shelved and ignored in part due to their excessive length and unwieldiness. The FEMA Comprehensive Preparedness Guide 101 insightfully states: The most common planning pitfall is the devel- opment of lengthy, overly detailed plans that those responsible for their execution do not read. A plan that tries to cover every conceiv- able condition or that attempts to address every detail will only frustrate, constrain, and confuse those charged with its implementation. Success- ful plans are simple and flexible.217 An efficiently and effectively written plan is the same as any other piece of good writing—it requires careful editing and keen attention to audience. Moreover, planners should assess how the document may actually be used out- side of training prior to an event. Planners should keep in mind, for example, that person- nel may utilize the document to refresh their memories or there may be key sections of the document that are used during an activation. Moreover, personnel from an incident man- agement team from another jurisdiction may have to get up to speed quickly on an EOP’s elements. Planners should be mindful to con- struct these documents so they can be used in various ways. 216 Correspondence with Michael Docterman, FEMA Program Specialist, PPD-8 Program Execu- tive Office (Apr. 19, 2012). 217 FEDERAL EMERGENCY MANAGEMENT AGENCY, supra note 208, at 1-7.

37 b) Training and Exercises.—The process of establishing response doctrine forward- readiness is assisted by the establishment and implementation of a training and exercise pro- gram, a key tool of a continuous improvement program. Exercises allow personnel—from transit employees and city first responders to senior officials—to validate plans though the application of procedures and experience on various potential emergency scenarios. Exer- cises are the primary tool for assessing prepar- edness and identifying areas for improvement, while demonstrating the resolve to prepare for emergency activations. Well-designed and well- executed exercises are the most effective means of:218 • Assessing and validating policies, plans, procedures, training, equipment, assumptions, and interagency agreements. • Clarifying roles and responsibilities. • Improving interagency coordination and communications. • Identifying gaps in resources. • Measuring performance. • Identifying opportunities for improve- ment. A strong training and exercise program will: • Provide opportunities to test personnel under various circumstances and situations. • Check personnel understanding of agency protocols and practices. • Provide personnel with critiques of their performances in drills and exercises (see Ap- pendix C for sample evaluation forms). • Assist in evaluating plans, procedures, and practices. • Integrate lessons learned from training, exercises, and actual incidents back into agency procedures and training programs. Many transit systems struggle with the costs of maintaining a proper training and ex- ercise program. At present, ferry operators are subject to the most rigorous mandates of all transit systems as they are required to run drills or exercises for vessels and facilities every 3 months. However, as Case Study Number 1 below shows, other systems large 218 Department of Homeland Security, 1 Home- land Security Exercise Evaluation Program (HSEEP), at 1 (2007), available at https://hseep.dh. gov/pages/1001_HSEEP10.aspx. Accessed July 5, 2013. and small find ways to prioritize, manage, exe- cute, and finance these important activities.219 4. Case Studies The following profiles are presented to as- sist transit managers to see real-life applica- tions of the resilience guidance above. Whether you operate a rural transit system or the larg- est of the public transportation providers in the country, these profiles will exemplify that no matter how small or large your agency is, every system can still meet the general obligations for emergency management, just scaled to their realities. a) Case Study Number 1: Implementing at the Rural Level—SCUSA Transportation220.— Stanly County Umbrella Services Agency (SCUSA)221 is a demand-response transporta- tion service provider that serves Stanly County, North Carolina (population approxi- mately 61,000). SCUSA operates 16 vans and buses for 12 hours a day, 5 days a week. Gwen Hinson is the transit service director of SCUSA, a position that directly reports to the Stanly County manager. The director oversees a close-knit operation of approximately 14 op- erators, a management staff of 2, and an ad- ministrative assistant. As with any small op- eration, management staff has experience with various aspects of operations, including driving vehicles in service. SCUSA is part of the county’s Basic EOP to provide emergency transport services under an incident command. In general, the EOP ad- dresses various hazards for which SCUSA ser- vices may be activated, including inclement weather and major accidents. All SCUSA per- sonnel and new job applicants are trained on EOP goals, objectives, and responsibilities and are told as part of their job duties that they may be called in to respond to an incident at any hour of the day. The director is a member 219 For more information on building a training and exercise program, see MCCORMACK TAYLOR, INC., GUIDELINES FOR TRANSPORTATION EMERGENCY TRAINING EXERCISES (9 Transportation Security: Transit Cooperative Research Program Report 86/National Cooperative Highway Research Program Report 525, Transportation Research Board, 2006). 220 For general information about Stanly County, North Carolina, see http://www.city-data.com/county /Stanly_County-NC.html. 221 “SCUSA” is an anachronism with roots in a pe- riod when transportation services were just one of various services provided by SCUSA. Today, trans- portation is the only service provided under the “um- brella.”

38 of the county Safety Committee and the Local Emergency Planning Committee. The foundations upon which SCUSA can operate within an incident command are the basic job skills and experience of its personnel. For over 25 years, SCUSA has been run with a “common sense” philosophy that a focus on the core competencies of personnel will translate into a safer, more secure environment for its employees and its passengers. Policies and per- sonnel job functions are clearly outlined, and job performance evaluation criteria have been specified. Beyond basic skills required of para- transit operators such as lift operations and addressing patrons with various special needs, SCUSA has assessed other more common op- erational risks, including operator or passenger assaults, hazardous equipment, and environ- mental conditions, and addressed them within SCUSA procedures. (The director indicates though that some procedures are informal yet understood. For example, one rule of thumb in Stanly County is “when two snowflakes fall, everything shuts down (including transit) and all of the milk and bread disappear off of gro- cery shelves.”) All policies, including emer- gency protocols, are reviewed for currency by the director every 6 months. Whether or not amendments are made, the policy date is up- dated to reflect the review. Several years ago, to enhance the core com- petencies of her personnel, the director ap- proached the county emergency management director (EMD) about running joint operations for vehicle emergency and evacuation training. The director had been searching for someone to provide this type of training, and after several years investigated the possibility of putting something together with the county. With strong support from the EMD, a drill planning team consisting of Emergency Management Agency, fire, and emergency medical techni- cian (EMT) personnel was formed in 2010. At the outset, the planning team developed three scenarios for the first 3-hour Vehicle Emer- gency Evacuation training session run in April 2010. To allow for this opportunity, SCUSA will cancel services for 1 day during the year on a date chosen by the planning team 2 to 3 months ahead of time. SCUSA contacts all of its passengers and local agencies to inform them services will not be provided on that date. This information is printed in the local news- paper and put on the county Web site. As an added benefit, the open date allows SCUSA’s contracting social service agencies a day to conduct their own training as well. Having the expertise from multiple local agencies, these Vehicle Emergency Evacuation training sessions are comprehensive and thor- ough. SCUSA uses several types of vehicles, including one that has met its useful life and is kept specifically for training purposes. Scenar- ios have called for a vehicle to be turned on its side, put in ditches and gullies, and to add real- ism to the conditions, smoke machines and moulage have been used. The training helps operators to think through scenarios and re- sponders to become familiar with transit proto- cols and vehicle equipment, including wheel- chair lifts, securements, and hatches. Every operator in SCUSA is tested on each scenario. Exercise participants are all critiqued based on specified expected actions and activities. Re- sults of drills may be translated back into poli- cies if warranted. In addition, one of the most favorable aspects of the Vehicle Emergency Evacuation training program is that the ses- sions are essentially free. Each agency contrib- utes personnel expertise and time during work hours, and incidentals such as food are low in cost. The director understands that while she is the head of a transit system, she is in a unique position to be within county management with ties to local emergency services. However, unlike other smaller transit systems, while she has the relationships to assist in this endeavor, the idea to advance her agency’s training objec- tives while advancing those of others was wel- comed by her regional partners. As for the cost of training, the director also understands that other agencies do not have the luxury of closing the system on a weekday or that overtime re- quirements may be necessary. To her, if train- ing is a priority, these types of programs should be built into the operating budget at the beginning of each year as the benefits can be great (or as she puts it, “it is better to pay a few hundred dollars of overtime than to pay a few thousand for an incident that may have been covered in a training session.”) To defray costs, the director recommends looking for op- portunities for required training sessions to be done at low to no cost. For example, SCUSA works with the EMD for CPR/first aid, blood- borne pathogen, fire extinguisher, oxygen con- tainer and securement, and web-cutting train- ing—all at no charge.222 As a cooperative quid pro quo, SCUSA pays for part of the certifica- tion cost for the Emergency Management trainer to teach defensive driving training. “Most people are willing to help,” the director 222 Moreover, fire departments around the United States provide National Incident Management train- ing sessions free of charge, as well as FEMA’s Emer- gency Management Institute’s online training site.

39 recommends. “You just have to go out and find them and form partnerships.” To date, 13 other North Carolina transit systems have asked to participate in Stanly County’s Vehicle Emer- gency Evacuation program. In 2004, the North Carolina Department of Transportation Public Transportation Division (PTD) approved a program implementation modification and began requiring transit sys- tems to establish an SSPP. PTD provided tran- sit systems with an SSPP template to follow based on FTA Transit Bus Safety and Security Program guidance. For SCUSA, the SSPP and security plans are useful tools to help organize a transit agency’s operations and manage risk, and it supports the PTD’s efforts. b) Case Study Number 2: Implementing at the Metropolitan Area Level—New York City Office of Emergency Management and New York City Transit On Friday, October 26, 2012, Mayor Michael Bloomberg activated New York City’s Coastal Storm Plan (CSP) in anticipation of the arrival of Hurricane Sandy. Activation and implemen- tation of the CSP is a massive undertaking in terms of scope, number of coordinated ele- ments, and cost. The CSP assumes the poten- tial for opening, stocking, and staffing 500 shelters and 65 evacuation centers; moving upwards of 3 million evacuees from all over the city, including from 48 hospitals and 116 nurs- ing homes; and conceptualizing the restoration of services and debris removal in the aftermath of a coastal storm. From a few days prior to the mayor’s announcement into months after Sandy’s landfall, the city’s Office of Emergency Management (OEM) was coordinating with local, state, regional, and private partners to track Hurricane Sandy and consider the poten- tial impacts of what was then being anticipated as a “perfect storm.”223 As the workhorse for the city’s evacuation strategy, OEM coordinated closely with New York City Transit (NYCT) and other area tran- sit systems. In the development phases of the CSP, OEM coordinated planning with NYCT to understand its capabilities to build an evacua- tion strategy and develop evacuation clearance time estimates, among other tasks, to move people from identified flood zones. NYCT is part of the city’s Coastal Storm Steering Com- mittee (CSSC), convened regularly as storms are tracked and the CSP is activated. NYCT 223 John Schwartz, Early Worries that Hurricane Sandy Could Be a “Perfect Storm,” N.Y. TIMES, Oct. 25, 2012, available at http://www.nytimes.com/2012/ 10/26/us/early-worries-that-hurricane-sandy-may-be- a-perfect-storm.html?_r=0. Accessed July 5, 2013. liaisons participate in CSSC conference calls to report the status of its subway, bus, and para- transit operations and progress on pre-scripted activities synchronized with other city agency preparedness tasks. The CSP conceives of mov- ing close to 2 million evacuees by transit alone, taking into account people with mobility dis- abilities, accommodating pets and service ani- mals, and the 10 prominent languages spoken in the 3 potential evacuation zones.224 On Sunday, October 28, 2012, the mayor announced that by 9 p.m. that evening, NYCT subways and buses would be closed after they assisted in evacuation operations.225 The focal point for all CSP activations is “Zero Hour,” when sustained tropical storm force winds reach 39 mph and all evacuation operations cease. The subways need at least 8 hours to shutter service and get personnel to safety, and for buses 6 hours are needed, so by closing pub- lic access late in the evening Sunday they would meet the National Weather Service’s estimate that winds from Hurricane Sandy would achieve 39 mph by morning rush. By 9 p.m. the next evening, the storm surge in the Battery in lower Manhattan exceeded 13 ft and the subway system began to flood. On Tuesday, the city learned of the catastrophic damage to the subway system, including complete flood- ing of its Whitehall Street/South Ferry Station and seven East River tunnels, with the A Train’s North Channel Bridge to the Rock- aways submerged in Jamaica Bay.226 The mayor informed the city that the subways would be closed indefinitely. However, by that Thursday, NYCT initiated bus bridge service into Manhattan and, remarkably, 80 percent of subway service was restored by Saturday. While the results of efforts to restore NYCT operations were quite surprising to most people in the city, preparedness planning certainly played an important role in NYCT’s successes. To prepare for Zero Hour and storm landfall, NYCT is required to carry out various tasks 224 Languages include Spanish, Russian, Chinese, French Creole, Polish, Italian, French, Arabic, Yid- dish, and Korean. 225 NYCT’s Access-a-Ride paratransit services closed by 5 p.m. that day. See N.Y. Daily News Real Time coverage, available at http://live.nydailynews. com/Event/Tracking_Hurricane_Sandy_2?Page=0. Accessed July 5, 2013. 226 Robert Kolker, How Did the MTA Restore Subway Service in Time for Monday’s Rush Hour?, NEW YORK MAGAZINE, Nov. 15, 2012, available at http://nymag.com/daily/intelligencer/2012/11/how- did-the-mta-restore-subway-service.html. Accessed July 5, 2013.

40 pursuant to the CSP to ensure that services will be available after an event. The primary task is for NYCT to assess the potential im- pacts of the storm to essential functions and secure the system to the greatest extent possi- ble prior to Zero Hour based on identified threats. NYCT proceeded to implement numer- ous mitigations to protect vital systems and assets, including: • Clearing flood-prone stations, yards, and depots. • Moving buses and trains out of flood ar- eas. • Clearing pumps and catch basins in tun- nels. • Removing critical components from tun- nels to protect them from salt water. • Covering subway street gratings and sub- way access ways with plywood and sandbags. • Dispatching patrol trains to monitor water infiltration, while engineers prepared to shut power to signal systems. • Removing stop motors from vehicles that interact with automatic brake equipment at track level. • Checking that pump trains, portable pumps, and emergency response vehicles were operational and would be available to be de- ployed.227 • Stationing a NYCT liaison in the OEM Emergency Operations Center 24/7 well into the recovery from Sandy. Through an unprecedented unwatering op- eration conducted by FEMA through the U.S. Army Corps of Engineers, the seven East River tunnels were back up and running in a few weeks. The North Channel Bridge to the Rock- aways opened in June 2013. The president of NYCT, Charles Prendergast, said of the NYCT’s work for the storm and reconstruction efforts: “New Yorkers are very resilient; we could not have gotten through it this far without their sup- port…[w]hen I look back, given all that we were able to take care of and get service re- stored, it was pretty amazing to do all we could do.”228 D. The Role of the Attorney in Emergency Planning Legal counsel can be invaluable to guide planning deliberations and in assessing agency compliance with laws and regulations. With 227 Id. 228 Id. the right experience and knowledge, the attor- ney can provide pivotal risk management ad- vice to a transit system as part of a leadership planning team. This section identifies several key areas where an attorney can be helpful to guide transit executives in emergency man- agement planning, including: • Tort liability avoidance. • Understanding disaster assistance pro- grams and processes. • Evaluating SSI. • Developing mutual aid agreements. 1. Legal Issues in Emergency Planning a) Sovereign Immunity and Planning.—As the term implies, a supreme ruler has little fear of legal repercussions if harm comes to one of his or her subjects as the result of imperial negligence. While this thought may be hard to digest now in our society, this was essentially legal doctrine in the United States in the last century, when a government agency had to consent to being sued before an injured person could seek legal redress from a government entity.229 Over the years, the fortitude of sover- eign immunity was tested and eroded by judi- cial opinion. Ultimately, limitations to the doc- trine began to be codified by legislatures.230 Some government tasks are ministerial requir- ing little independent thought, with defined parameters and outcomes such as processing a form for a construction permit. However, some government functions require deliberations and judgment such as policymaking and im- plementing policy. It is a practical reality in the latter case that if government agencies have no such protections for the judgments they make every day they would be debilitated, having to constantly defend their actions. Gen- erally, sovereign immunity provides the assur- ances that public entities can in fact lead and govern. Applying the doctrine of sovereign im- munity is a balancing act that strives to seek an equitable medium between protecting gov- ernment independence to serve the public and an individual’s right to address torts231 commit- ted by government entities. 229 LARRY W. THOMAS, STATE LIMITATIONS ON TORT LIABILITY OF PUBLIC TRANSIT OPERATIONS 4, (Transit Cooperative Research Program Legal Re- search Digest No. 3, Transportation Research Board, 1994). 230 Id. 231 A tort is “[a] legal wrong committed upon the person or property independent of contract…[or] an infraction of some public duty by which special dam-

41 With respect to emergency planning, a seminal court case establishing the legal pa- rameters of sovereign immunity is Dalehite v. United States.232 Plaintiffs brought this action under the Federal Torts Claims Act,233 and argued that a death resulting from an explo- sion of ammonium nitrate fertilizer on a cargo ship under the control of the United States for export to Europe following World War II was a result of negligence on the part of the govern- ment. Plaintiff contended that the explosion was a direct result of improper handling of the fertilizer in the loading process, causing it to become unstable and ignite.234 The Supreme Court held that “[t]he acts found to have been negligent were…performed under the direction of a plan developed at a high level under a di- rect delegation of plan-making authority from the apex of the Executive Department….”235 The discretionary function of government in- cludes the “determinations made by executives or administrators in establishing plan, specifi- cations, or schedules of operations. Where there is room for policy judgment and decision there is discretion. It necessarily follows that acts of subordinates in carrying out the opera- tions of government in accordance with official directions cannot be actionable.”236 In DFDS Seacruises (Bahamas) v. United States,237 the district court examined whether discretion may be used not to engage in emer- gency planning. The case centers on a fire aboard the cruise ship Scandinavian Sea that spread to a number of cabins and decks. Plain- tiffs filed a complaint pursuant to the Admi- ralty Act238 alleging, inter alia, that the USCG was negligent for failing to establish a ship- board firefighting contingency plan.239 Plain- tiffs claimed that had a contingency plan ex- isted, the USCG’s firefighting response would have been better coordinated and thus more effective.240 Moreover, plaintiffs claimed that the USCG failed to comply with a USCG Ma- rine Safety Manual that instructed “district age accrues to the individual….” Black’s Law Dic- tionary (9th ed. 2009). 232 346 U.S. 15, 73 S. Ct. 956, 97 L. Ed. 1427 (1953). 233 Pub. L. No. 80-773, 62 Stat. 982 (1948) (codi- fied at 28 U.S.C. § 1346, et al. (2013)). 234 Id. at 46–47. 235 Id. at 39–40. 236 Id. at 35–36. 237 676 F. Supp. 1193 (S.D. Fla. 1987). 238 46 U.S.C. §§ 741–752 (2013). 239 676 F. Supp. at 1196. 240 Id. at 1207. commanders, captains of the port and com- manding officers…[to] insure that ports within their jurisdiction have current and effective contingency plans, supported by the port com- munity, to provide adequate response…to fires and other accidents.”241 Relying on Dalehite, the District Court held against the plaintiffs as the decision not to develop a contingency plan was within the USCG’s discretionary authority to allocate its financial resources as it saw fit.242 With respect to the Safety Manual, the court found that it was used for “internal guid- ance only and sets forth numerous desirable goals which Coast Guard personnel are en- couraged to achieve…243 [D]ecisions as to whether, where and when to expend time and resources to develop such plans are entrusted to the Coast Guard's judgment and are not reviewable by this Court.”244 However, discretionary authority is not lim- itless, and thorough assessment and delibera- tion to come to a decision may be a foundation upon which immunity lies. In Bordelon v. Gravity Drainage District No. 4 of Ward 3 of Calcesieu Parish,245 the Louisiana Court of Appeals examined whether immunity applies when no discretionary judgment is actually used for emergency planning. Here, the defen- dants appealed a jury verdict in favor of the plaintiffs, 24 homeowners whose properties were located within the drainage district that was flooded due to Hurricane Rita in Septem- ber 2005.246 Plaintiffs claimed that the plan- ning and delayed measures to address flooding resulted in their losses.247 The trial court jury found that the defendants did not have a plan in place to deal with the scenario in which per- sonnel might not be able to return to a pump- ing station for an extended period of time after a disaster, thus rendering them unable to at- tend to and start pumping operations. For an organization whose primary responsibility “is to provide for drainage…[t]hey are mandated to make adequate provisions for drainage….”248 The court held that planning for hurricane flooding involved discretion, however a key contingency to the scenario at hand— developing an automated pump system, a pro- 241 Id. 242 Id. at 1205. 243 Id. at 1201. 244 Id. at 1206. 245 74 So. 3d 766, 2011 La. App. LEXIS 1136 (2011). 246 Id. 247 Id. at 768. 248 Id. at 774.

42 ject which was deemed feasible by the defen- dants and for which money was available—was never considered by the defendants.249 The de- fendants failed “to anticipate the contingency that when no one was available to turn on pumps, flooding would ensue…[therefore] [i]mmunity does not attach.”250 With respect to emergency operations, many states offer liability protections for emergency service workers through provisions of their state emergency management laws. These li- ability protections broadly cover all personnel who may serve pursuant to a state’s emergency operations plans or local plans. As key compo- nents of state transportation ESF, in many states immunity provisions will attach to tran- sit personnel responding to an event pursuant to a local or state emergency declaration. Under a typical emergency management law liability provision, upon the issuance of a declaration of emergency on either the state or local level, provisions are set into motion regu- lating the use of disaster emergency response personnel to meet a crisis. A sample from West Virginia of an emergency service worker provi- sion is as follows: Immunity and exemption; “duly qualified emer- gency service worker” defined. All functions hereunder and all other activities relating to emergency services are hereby declared to be governmental functions. Neither the state nor any political subdivision nor any agency of the state or political subdivision nor, except in cases of willful misconduct, any duly qualified emer- gency service worker complying with or rea- sonably attempting to comply with this article or any order, rule, regulation or ordinance promulgated pursuant to this article, shall be liable for the death of or injury to any person or for damage to any property as a result of such activity. This section does not affect the right of any person to receive benefits or compensation to which he or she would otherwise be entitled under this article, chapter twenty-three of this code, any Act of Congress or any other law.251 Other statutes will not attach immunity “for acts constituting gross negligence or willful or wanton misconduct.”252 Alabama also includes “bad faith” in the exception to immunity.253 In many cases, emergency management statutes like the West Virginia immunity provision will have broad coverage of emergency service 249 Id. at 772. 250 Id. at 774. 251 W. VA. CODE § 46-1-101, § 15-5-11(a). 252 WASH. REV. CODE § 38.52.180(4)(c). 253 ALA. CODE § 31-9-16(b). worker activities, including protections for planning functions. State tort claims acts also may shield emer- gency service workers using a discretionary function test borrowed from the Federal Torts Claims Act as in South Carolina254 and Geor- gia.255 In Parsons v. Mississippi State Port Au- thority at Gulfport,256 Appellants argued that the trial court erred in ruling that the Missis- sippi Tort Claims Act (MTCA)257 did not super- sede the state’s Emergency Management law (MEML) and that Appellee is liable for prop- erty damage due to Appellee’s negligent storm preparations and operations for Hurricane Katrina. The Court of Appeals determined that, while the MTCA was enacted 10 years after the MEML and is the exclusive remedy against the state and its agencies, “claims that are limited or barred by other provisions of law are exempted from liability under the MTCA.”258 As such, the court held that the two laws could be read in conjunction with each other “to provide immunity for the state and its agencies for its activities during times of emer- gency management while simultaneously being exempt from liability under the MTCA.”259 However, emergency service worker immu- nity provisions only become operative upon the issuance of a disaster or emergency declara- tion. Without such declarations and in the ab- sence of governmental immunity, emergency service workers are subject to local tort law. In Prince v. Waters,260 the court considered the issue of compliance with emergency plans and its elements. Plaintiff alleged that her fire- fighter husband died while fighting a blaze due to the negligence of the County Fire Coordina- tor, an employee of the County of Onondaga, and thus the County, pursuant to the respon- deat superior doctrine, was liable for his death. Additionally, plaintiff contended that defen- dants were also liable pursuant to General Municipal Law Section 205-a (which allows for additional compensation for injury or death due to “any neglect, omission, willful or culpa- ble negligence of any person or persons in fail- ing to comply with the requirements of any of the statutes, ordinances, rules, orders and re- quirements of the federal, state, county, vil- lage, town or city governments or of any and 254 S.C. CODE ANN. § 15-78-60(5). 255 GA. CODE ANN. § 50-21-24(2). 256 996 So. 2d 165 (2008). 257 MISS. CODE § 11-46-1 (1972, as amended). 258 Id. at 170. 259 Id. 260 48 A.D. 3d 1137, 850 N.Y.S.2d 803 (2008).

43 all their departments, divisions and bu- reaus….”)261 Defendants moved for summary judgment and the New York Supreme Court dismissed the complaint. On review, the Appel- late Division held that the defendants did not comply with a New York State emergency command and control standard, the National Interagency Incident Management System (NIIMS-ICS), adopted by Executive Order. The County Fire Coordinator disputed that he was in command of the incident. However, fire- fighters reported that he gave orders and that he was wearing the white firefighter hat indi- cating that he had command responsibilities as per NIIMS-ICS, though the Coordinator dis- puted the contentions.262 The court held that these circumstances “may give rise to liability” and that the defendants were not entitled to summary judgment on the Section 205-a claim (plaintiff abandoned its wrongful death action and did not appeal).263 b) Civil Rights: ADA, Environmental Jus- tice, and LEP.—Title VI of the Civil Rights Act of 1964 provides that “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”264 In the aftermath of Hurricane Katrina, an additional emphasis was placed not only on emergency preparedness provisions for the disabled and elderly but on other special needs groups such as those with LEP, carless popula- tions, and low-income and minority popula- tions. To address these latter concerns, USDOT issued internal orders and parameters to in- struct its modal administrations to consider environmental justice and LEP concerns in operations planning. As Case Study Number 2 above indicates, governments and transit have responded to these requests to consider and accommodate vulnerable populations. The sections below will examine case law and events to exemplify the issues involved with planning for special needs populations and will indicate sources of guidance and in- formation on ADA, environmental justice, and LEP issues in relation to emergency operations and preparedness. By understanding concerns of these populations, transit can address them appropriately to provide safer, equitable, more 261 Id. 262 Id. at 1138. 263 Id. 264 42 U.S.C. § 2000d (2013). comprehensive, and compliant approaches in managing transit risk and service delivery. i. ADA.—Equity is a key principle upon which USDOT and its modal administrations operate, and nowhere should that be more highlighted than in public transportation. As emergency planning principles pursuant to HSPD-5, NIMS, and the NRP were being de- veloped, President Bush authorized Executive Order 13347, Individuals with Disabilities in Emergency Preparedness,265 which mandated that persons requiring special assistance due to disability be included in emergency planning at all levels of government. In Communities Actively Living Independ- ent and Free v. City of Los Angeles,266 plaintiffs sued the City of Los Angeles for allegedly vio- lating several laws, including the ADA and the California Disabled Persons Act,267 by failing to account for the needs of over 800,000 disabled city residents in its emergency preparedness program. Plaintiffs argued that the Los Ange- les preparedness plan did not contain provi- sions to notify individuals with auditory or cognitive impairments regarding an emergency and had no information about evacuation, transportation, or temporary housing for dis- abled individuals either during or immediately after an emergency.268 The plaintiffs surveyed a small sample of Los Angeles’ estimated 200 emergency shelter sites, and “few, if any” were fully compliant with ADA requirements.269 In 2008, the Los Angeles Department on Disabil- ity reported concerns that disabled city resi- dents were “at-risk for suffering and death in disproportionate numbers” during an emer- gency unless the city revised its emergency plan to account for their needs.270 Plaintiffs contended that the defendants failed to act on the concerns raised by the Department of Dis- ability’s report and that disabled individuals are at a higher risk than other city residents to be harmed during an emergency.271 Defendants claimed that, because the City had not taken any affirmative action to actually exclude dis- abled individuals from any of its programs or services, no illegal discrimination occurred. The court rejected the defendants’ argument, as the entire purpose of an emergency prepar- 265 69 Fed. Reg. 44573 (July 26, 2004). 266 No. CV 09-0287 CBM (RZx), U.S. Dist. Ct., Central Dist. of CA (2011). 267 CAL. CIV. CODE § 54.1, et seq. (2013). 268 Id. at 4–5. 269 Id. at 25. 270 Id. at 24. 271 Id.

44 edness plan is to anticipate the types of needs that will arise during and immediately after an emergency.272 The district court found that Los Angeles’ emergency preparedness program was designed to apply to all city residents, includ- ing disabled individuals. Disabled individuals, however, did not have meaningful access to the program and the City had not made reasonable accommodations to meet these needs—thus, disproportionately burdened disabled individu- als.273 The court supported this finding with examples, such as the City’s failure to deter- mine whether its emergency shelters were wheelchair accessible or able to accommodate individuals who rely upon service animals.274 It was not long before the effects of the Communities decision had an impact on other jurisdictions. The U.S. District Court for the Southern District of New York granted class certification on November 7, 2012, in a lawsuit filed in 2011 after Hurricane Irene. The suit alleges that New York City’s disaster prepar- edness plan violates the ADA by failing to ac- commodate, and thus discriminating against, the estimated 900,000 persons with disabilities in New York.275 In May 2013, the U.S. Attorney for the Southern District of New York, on be- half of the United States Department of Jus- tice, filed a statement of interest that sup- ported the plaintiffs’ position stating that the city’s emergency management plans “do not adequately protect the rights of individuals with disabilities….”276 ii. Environmental Justice.—USDOT Order 5610.2(a) seeks to achieve environmental jus- tice by integrating the policies of the National Environmental Policy Act and Title VI in the planning of all transportation projects. The USDOT order specifically requires that trans- portation agencies address “adverse effects” on minority and low-income populations. Adverse effects include the following: • Bodily impairment, infirmity, illness, or 272 Id. at 26. 273 Id. at 27. 274 Id. at 25. 275 Brookland Center for Independence of the Dis- abled v. Bloomberg, No. 11 CV 6690 (U.S. Dist. Ct., So. Dist. of New York, filed Sept. 26, 2011), see http://disabilityrightsgalaxy.com/2012/11/12/nyc- emergency-plan-lawsuit-moves-forward/. Accessed July 5, 2013. 276 Benjamin Weiser, Storm Plans for Disabled are Inadequate, U.S. Says, N.Y. TIMES, May 10, 2013, available at http://www.nytimes.com/2013/05/ 11/nyregion/storm-plans-for-disabled-inadequate-us- says.html. Accessed July 5, 2013. death. • Air, noise, and water pollution, and soil contamination. • Destruction or disruption of man-made or natural resources. • Destruction or diminution of aesthetic values. • Destruction or disruption of community cohesion or a community’s economic vitality. • Destruction or disruption of the availabil- ity of public and private facilities and services. • Vibration. • Adverse employment effects. • Displacement of persons, businesses, farms, or nonprofit organizations. • Increased traffic congestion, isolation, ex- clusion, or separation of minority or low- income individuals within a given community or from the broader community. • The denial of, reduction in, or significant delay in the receipt of benefits of USDOT pro- grams, policies, or activities. USDOT and other transit authorities must address environmental justice and equity un- der the USDOT Order. However, matching the aspiration to and achieving the ends of envi- ronmental justice and transportation equity is not easily done. With respect to equity in transit planning, in Labor/Community Strategy Center v. Los Angeles County Metropolitan Transportation Authority (MTA),277 minority bus riders of the Los Angeles County MTA filed a class action lawsuit under Title VI and the 14th Amend- ment alleging that the MTA spent a dispropor- tionate amount of its budget on suburban rail service and buses at the expense of inner city buses, which faced fare increases and service neglect. The plaintiffs presented evidence that while approximately 94 percent of the MTA’s clients were bus riders and 80 percent of those riders were persons of color, only 30 percent of the MTA’s resources were spent on buses and the remaining 70 percent were spent on the rails, which serviced only 6 percent of the MTA’s total ridership.278 The plaintiffs also presented MTA documents describing over- crowding.279 In 1996, the two parties entered into a consent decree that required that the MTA purchase 248 additional buses to prevent overcrowding and continue the low monthly and daily fares.280 However, 14 months after 277 263 F.3d 1041 (9th Cir. 2001). 278 Id. 279 Id. at 1042. 280 Id. at 1047.

45 signing the consent decree the MTA failed to meet its requirements. Specifically, the MTA had not acted to reduce the over-crowding problems on the buses.281 The MTA argued that it had insufficient funds to purchase new buses and therefore could not meet its targeted goal.282 In 2001, the Ninth Circuit affirmed the earlier district court decision and ordered the MTA to comply with the consent decree. The essence of USDOT’s Order regarding applying equity and fairness concerns to plan- ning and programming activities must be an important facet of planning activities, which may serve as another counter-balance to the application of sovereign immunity protection for government. For all to benefit from munici- pal service equally, transit systems must at- tempt to avoid disproportionately high and adverse effects in programs, policies, and ac- tivities on the disabled, elderly, minority, and low-income populations. In the capital, design, and operational planning processes, procedures should be established or expanded, as neces- sary, to consider and provide meaningful op- portunities for public involvement by members of these communities to mitigate unintended impacts on them. iii. LEP.—To date, no cases can be located involving persons alleging that a transit sys- tem limited access to information for persons with LEP. However, as other cases indicate, failure to provide adequate interpretation of materials can have detrimental impacts. In New York City, a 2003 law was passed to give city agencies 5 years to phase in compre- hensive interpretation services, supplied by phone or in person, and required that city forms be made available in Arabic, Chinese, Haitian, Creole, Korean, Russian, and Spanish. The deadline was February 2009. An advocacy group filed a lawsuit in the State Supreme Court in Manhattan on behalf of six clients who contended, because of language barriers, they lost benefits, their benefits were delayed, or they were unable to appeal benefits deter- minations effectively.283 Today, New York City government agencies provide services in numerous languages, with a core set of English, Spanish, Chinese, and Rus- sian.284 In addition, the City’s 311 system’s 281 Id. at 1048. 282 Id. 283 Jennifer Lee, Welfare Agency Is Sued Over Translation Service, N.Y. TIMES, Aug. 11, 2009, available at http://www.nytimes.com/2009/08/12/ nyregion/12translate.html. Accessed July 5, 2013. 284 Pursuant to City Executive Order 120 (2008), available at http://www.nyc.gov/html/om/pdf/2008/ Web site provides information in over 50 lan- guages, and NYCT’s Transit Adjudication Board provides interpretation services for 170 languages.285 iv. Resources.—Key sources of helpful infor- mation to assist transit in identifying means to address fairness and social justice issues in planning include the following: • FTA’s Transportation Equity in Emergen- cies: A Review of the Practices of State Depart- ments of Transportation, Metropolitan Plan- ning Organizations, and Transit Agencies in 20 Metropolitan Areas (2007). This study focuses on emergency preparedness activities being conducted in 20 metropolitan regions that have recently experienced natural or manmade dis- asters and also have populations with rela- tively high overall numbers and proportions of persons of racial and ethnic minorities, persons with low incomes, persons with LEP, and per- sons living in households without vehicles. • U.S. Access Board, Resources on Emer- gency Evacuation and Disaster Preparedness Web site (http://www.access-board.gov/evac. htm) holds a wealth of planning information, including guidance for transportation profes- sionals. • The FTA Office of Civil Rights’ Implemen- tation of the Department of Transportation’s Policy Guidance Concerning Recipient’s Re- sponsibilities to Limited English Proficient Persons: A Handbook for Public Transportation Providers (2007). FTA discusses how grantees may collect and use data and assess operations to comply with the USDOT Order and FTA’s Circular 4702.1A. 2. Disaster Recovery Assistance and Resilience Funding The following sections describe 1) the proc- ess by which Stafford Act disaster public assis- tance becomes available to eligible recipients, 2) eligible activities and costs that are reim- bursable pursuant to the Stafford Act, 3) pro- curement issues related to Stafford Act fund- ing, and 4) common reasons for Stafford Act claims to be rejected. a) Disaster Declaration Process.—When a disaster occurs and a locality has responded to the best of its ability and is, or will be, over- whelmed by the magnitude of the damage, the pr282-08_eo_120.pdf. Accessed July 5, 2013. 285 See N.Y. City Traffic Adjudication Bureau Web site, available at http://www.mta.info/nyct/ rules/TransitAdjudicationBureau/ LanguageServices.htm. Accessed July 5, 2013.

46 community turns to the state for help. The governor, after examining the situation, may direct that the state’s emergency plan be exe- cuted,286 direct the use of state police or the National Guard, or commit other resources as appropriate to the situation. If it is evident that the situation is or will be beyond the com- bined capabilities of the local and state re- sources, the governor may request that the President declare, under the authority of the Stafford Act, that an emergency or major disas- ter exists in the state. While this request is being processed, local and state government officials should not delay in taking the necessary response and recovery actions. The request for a declaration must come from the governor or acting governor. Before sending a formal request letter to the Presi- dent, the governor should request that FEMA conduct a joint Preliminary Damage Assess- ment with the state to verify damage and esti- mate the amount of supplemental assistance that will be needed.287 After this assessment is complete, if the governor believes that federal assistance is necessary, the governor sends the request letter for either an Emergency Decla- ration or a Disaster Declaration to the Presi- dent, directed through the regional director of the appropriate FEMA region.288 “Emergency” and “Major Disaster” (the presence of which is necessary to order a Disaster Declaration) are defined as follows: • Emergency: Any occasion or instance for which, in the determination of the President, federal assistance is needed to supplement state and local efforts and capabilities to save lives and to protect property and public health and safety, or to lessen or avert the threat of a catastrophe in any part of the United States.289 • Major Disaster: Any natural catastrophe (including any hurricane, tornado, storm, high water, wind-driven water, tidal wave, tsunami, earthquake, volcanic eruption, landslide, mud- slide, snowstorm, or drought), or, regardless of cause, any fire, flood, or explosion, in any part of the United States, which in the determina- 286 44 C.F.R. § 206.4. “State[s] shall set forth in [their] emergency plan[s] all responsibilities and actions specified in the Stafford Act and these regula- tions that are required of [states] and [their] political subdivisions to prepare for and respond to major disasters and emergencies and to facilitate the deliv- ery of Federal disaster assistance….” 287 44 C.F.R. § 206.33. 288 44 C.F.R. §§ 206.35 and 206.36. 289 44 C.F.R. § 206(a)(9). tion of the President causes damage of suffi- cient severity and magnitude to warrant major disaster assistance under this Act to supple- ment the efforts and available resources of states, local governments, and disaster relief organizations in alleviating the damage, loss, hardship, or suffering caused thereby.290 The request is reviewed by the regional di- rector and forwarded with a recommendation to the Director of FEMA who, in turn, makes a recommendation to the President. The Presi- dent makes the decision whether to declare a major disaster or emergency.291 When a decla- ration of a major disaster is made for a state, FEMA will designate those counties of the state that are eligible for assistance.292 In a little over a decade, transit systems have faced catastrophic disasters, including the events of September 11, 2001, and Hurricanes Katrina and Sandy. In the wake of an incident, the three primary funding sources to help tran- sit systems recover are insurance, tax revenue, and disaster public assistance if a system is within a declared “major disaster” or “emer- gency” area. The following sections describe the two primary sources of public disaster assis- tance: the Stafford Act Public Assistance Pro- gram and the complementary FTA Public Transit Emergency Relief Fund (FTA ERF). b) Stafford Act Public Assistance Program.— i. Generally.—The Robert T. Stafford Disas- ter Relief and Emergency Assistance Act of 1988 (Stafford Act) authorizes the programs and processes by which the federal government provides disaster and emergency assistance to state, tribal, and local governments; eligible private nonprofit organizations; and individu- als affected by a declared major disaster or emergency. State government agencies, such as departments of transportation, and local gov- ernments, such as a county, city, town, special district or regional authority, village, or bor- ough, are eligible for Stafford Act Public Assis- tance Program (PAP) funding.293 Public entities are those organizations that are formed for a public purpose but are not political subdivi- sions of a state or a local government.294 Facili- ties of public entities may be eligible for disas- ter assistance.295 To qualify for assistance, disaster assistance work must: 290 44 C.F.R. § 206(a)(17). 291 44 C.F.R. § 206.38. 292 44 C.F.R. § 206.40. 293 44 C.F.R. §§ 206.63 and 206.202. 294 44 C.F.R. § 206.221(f)(g). 295 44 C.F.R. § 206.223(c).

47 • Be required as a direct result of the de- clared disaster.296 • Be located within the designated area of a major disaster or emergency declaration (though evacuation activities may be located outside the area).297 ii. Eligible Work.—There are three general types of work that may be eligible. Table 7 be- low describes the various types of projects that may be eligible. See also Figure 3 for a transit- specific aspect of the Stafford PAP. 296 44 C.F.R. § 206.223(a)(1). 297 44 C.F.R. § 206.223(a)(2).

48 Table 7. Eligible Work for Stafford Act Public Assistance. ELIGIBLE WORK FOR STAFFORD ACT PUBLIC ASSISTANCE Category Eligible Work Notes Debris Removal A Trees and woody debris; building wreckage; sand, mud, silt and gravel; vehicles; and other disaster-related material To be eligible, activities must be necessary to: • Eliminate immediate threats to lives, public health, or safety; • Eliminate immediate threats of significant damage to improved public property or private property; or • Ensure economic recovery of the affected community to the benefit of the community at large. Emergency Protective Measures B Examples include search and res- cue; emergency replacement of public transportation facilities and vehicles; emergency medical care; securing perimeters; provision of supplies and resources; temporary facilities; activa- tion of state or local Emergency Op- erations Centers to direct response; and removal of hazards Measures taken before, during, or after a disaster to: • Eliminate or reduce an immediate threat to life, public health, or safety. • Eliminate or reduce an immediate hazard that threatens significant damage to improved public property. Roads and Bridges C Disaster-related damage to sur- faces, ditches, shoulders, drainage structures, low-water crossings, deck- ing and pavement, piers, girders, abutments, slope protection, and ap- proaches Must not be duplicative of fund- ing from the Federal Highway Ad- ministration’s Emergency Relief Fund. Water Control Facilities D Dams and reservoirs; levees; lined and unlined engineered drainage channels; shore protective devices; irrigation facilities; and pumping fa- cilities The U.S. Army Corps of Engi- neers and National Resource Con- servation Service have primary authority for repair of flood control works and federally funded shore protective devices. Permanent re- pairs to these facilities are not eli- gible. Buildings and Equipment E Buildings, furnishings, interior systems, and pre-disaster quantities of consumable supplies and inventory Insurance policies will be taken into account. Utilities F Water treatment plants and deliv- ery systems; power generation and distribution facilities Power generation includes gen- erators, substations, and power lines. Parks, Recreational, and Other G Playground equipment, swimming pools, bath houses, tennis courts, boat docks, piers, picnic tables, and golf courses Other types of facilities, such as roads, mass transit, buildings, and utilities, that are located in parks and recreational areas are also eli- gible and are subject to the eligibil- ity criteria for Categories C, D, E, and F.

49 STAFFORD ACT TRANSIT EMERGENCY RELIEF WORK A reimbursable area specific to transit that can be used in conjunction with an agency’s FTA Public Transit Emergency Relief Fund application is for Stafford PAP Public Transportation Emergency Work (49 C.F.R. § 206.225[d]). Essential portions of a community’s transportation system may be damaged by a disaster (such as a loss of a rail yard or the destruction of vehicles), severely impacting the functioning of a community. FEMA funding is available to provide for temporary supplements to transportation assets to maintain essen- tial transit functions. Such funding will terminate when identified needs have been met. Figure 3. Stafford Act Transit Emergency Relief Work. An eligible applicant must be legally re- sponsible for the damaged facility at the time of the disaster.298 The federal share for assis- tance provided under this title shall not be less than 75 percent of the eligible costs.299 Generally, work to restore eligible facilities is on the basis of the design of a facility as it existed immediately prior to a disaster.300 When a facility must be repaired, FEMA may pay for upgrades that are necessary to meet specific requirements of current codes and standards.301 This situation typically occurs when older facilities, particularly buildings, must be repaired in accordance with codes and standards that were adopted after the original construction. In the alternative, FEMA may pay for the replacement costs of a facility, which includes the costs for all work necessary to provide a new facility of the same size or design capacity and function as the damaged facility in accordance with current codes and standards.302 If a facility is damaged to the point where the applicant thinks the facility should be re- placed rather than repaired, the following cal- culation, known as the “50 Percent Rule,”303 should be used to determine whether replace- ment is eligible: • IF Repair Cost/Replacement Cost < 50 percent, THEN only the repair cost is eligible. • IF Repair Cost/Replacement Cost ≥ 50 percent, THEN the replacement cost is eligible. 298 44 C.F.R. § 206.223(a)(3). 299 44 C.F.R. § 206.65. 300 44 C.F.R. § 206.226. 301 44 C.F.R. § 206.226(f)(2). 302 44 C.F.R. § 206.226(f)(2). 303 44 C.F.R. § 206.226(f)(1). In addition, FEMA may pay for the cost of relocating a facility to a new location when a facility location is subject to repetitive heavy damage304 and the relocation is cost-effective305 as determined by FEMA. Other costs may also be eligible for reim- bursement by FEMA, including ownership and operation costs for use of applicant-owned equipment used to perform eligible work.306 iii. Procurements.—All grantees and sub- grantees of Stafford Act PAP funds are subject to federal procurement requirements.307 Grant- ees and subgrantees will use their own pro- curement procedures that reflect applicable state and local laws and regulations,308 but FEMA allows four methods to expedite com- petitive procurement contracts: • Small Purchase Procedures. For contracts under $100,000, price or rate quotations shall be obtained from an adequate number of quali- fied sources.309 • Procurement by Sealed Bids. Bids are pub- licly solicited and a firm-fixed-price contract (lump sum or unit price) is awarded to the re- sponsible bidder whose bid, conforming with all the material terms and conditions of the invita- tion for bids, is the lowest in price.310 • Procurement by Competitive Proposals. Proposals are to be solicited to and received from more than one qualified bidder submit- ting for either a fixed-price or cost- reimbursement basis contract. Generally used 304 44 C.F.R. § 206.226(g)(1)(i). 305 44 C.F.R. § 206.226(g)(1)(iii). 306 44 C.F.R. § 206.228(a)(1). 307 44 C.F.R. § 13.36(a). 308 44 C.F.R. § 13.36 (b)(1). 309 44 C.F.R. § 13.36(d)(1). 310 44 C.F.R. § 13.36(d)(2).

50 when conditions are not appropriate for the use of sealed bids.311 • Procurement by Noncompetitive Proposals. Allowed when the award of a contract is infea- sible under small purchase procedures, sealed bids, or competitive proposals and one of the following circumstances applies: 1) the item is available only from a single source, 2) the pub- lic exigency or emergency for the requirement will not permit a delay resulting from competi- tive solicitation, 3) the awarding agency au- thorizes noncompetitive proposals, or 4) after solicitation of a number of sources, competition is determined inadequate.312 Cost-plus contracts are expressly ineligible for PAP assistance.313 iv. Claims Pitfalls.—First, Section 312 of the Stafford Act establishes that applicants ensure that requests for aid to FEMA are not duplica- tive of any other benefits or sources of fund- ing.314 Section 312(a) states: President, in consultation with the head of each Federal agency administering any program pro- viding financial assistance to persons, business concerns, or other entities suffering losses as a result of a major disaster or emergency, shall assure that no such person, business concern, or other entity will receive such assistance with respect to any part of such loss as to which he has received financial assistance under any other program or from insurance or any other source.315 Next, the DHS Office of Inspector General (OIG) provides guidance on managing public assistance grants. According to OIG, among the most common causes for findings in an OIG audit and therefore PAP claims to be rejected include:316 • Poor contracting practices. • Unsupported costs. • Poor project accounting. • Excessive equipment charges. • Excessive labor and benefits charges. • Unrelated project charges. • Unapplied credits. • Excessive administrative charges. 311 44 C.F.R. § 13.36(d)(3). 312 44 C.F.R. §§ 13.36(d)(4)(i)-(iii). 313 44 C.F.R. § 13.36(f)(4). 314 42 U.S.C. § 5155. 315 42 U.S.C. § 5155(a). 316 Department of Homeland Security, Office of the Inspector General, Audit Tips for Managing Dis- aster-Related Project Costs, at 3-7 (2012), available at http://www.oig.dhs.gov/assets/Audit_Tips.pdf. Accessed July 5, 2013. As such, OIG recommends grantees and subgrantees be mindful of the following:317 • Designate a person to coordinate the ac- cumulation of records. • Establish a separate and distinct account for recording revenue and expenditures, and a separate account for each distinct FEMA pro- ject. • Ensure that the final claim made for each project is supported by amounts recorded in the accounting system. • Ensure that each expenditure is recorded in the accounting books and is referenced to supporting source documentation (checks, in- voices, etc.) that can be readily retrieved. • Research insurance coverage and seek re- imbursement for the maximum amount. Credit the appropriate FEMA project with that amount. • Check with your Federal Grant Program Coordinator about the availability of funding under other federal programs (i.e., FHWA, Housing and Urban Development, etc.) and ensure that the final project claim does not include costs that were funded or should be funded by another federal agency. • Ensure that materials taken from existing inventories for use under FEMA projects are documented by inventory withdrawal and us- age records. • Do not charge the regular time salary of permanent employees or seasonal employees (whose salaries are contained in annual appro- priations) to FEMA debris removal and emer- gency protective services projects. • Do not claim costs for items or activities for which you did not have a cash outlay. • Ensure that claims for overtime fringe benefits are based on cost items (i.e., Workers’ Compensation insurance, etc.) that accrue as a result of overtime. Items such as health bene- fits and leave are not eligible as overtime fringe benefits. • Ensure that expenditures claimed under the FEMA project are reasonable and neces- sary, are authorized under the scope of work, and directly benefit the project. • Ensure that you document pertinent ac- tions for contracts awarded under FEMA pro- jects, including the rationale for the method of procurement, the basis for contractor selection, and the basis for the contract price. Remember that federal regulations prohibit cost-plus- percentage-of-cost contracts. 317 Id. at 7.

51 c) FTA Public Transit Emergency Relief Pro- gram.—In 2008, the Government Accountabil- ity Office (GAO) reported that since 1998 the Federal Government provided approximately $5 billion through FEMA to assist FTA-funded transit systems after disasters, mostly for costs associated with September 11, 2001, and Hur- ricane Katrina.318 However, while FTA is man- dated to provide grant funding for the public transportation industry, FTA was limited in its ability to assist these systems with relief aid after emergencies. Moreover, FEMA lacked guidance on the types of relief it could provide transit,319 and the traditional Stafford Act PAP mechanism proved inefficient to provide quick relief funding for transit.320 As such, GAO rec- ommended that FEMA and USDOT look to the existing Federal Highway Administration’s Emergency Relief Program (FHWA ERP), which distributes Stafford Act funding for pre- scribed uses, as a model to expedite relief assis- tance to transit systems and as a source of guidance to build program elements and proce- dures between FEMA and USDOT.321 Four years later, the FTA Public Transit Emergency Relief Program (FTA ERP) was established as part of the MAP-21 legislation. Based on the FHWA ERP, the FTA ERP was created to help states and public transporta- tion systems pay for protecting, repairing, or replacing equipment and facilities that may suffer or have suffered serious damage as a result of an emergency, including natural dis- asters such as floods, hurricanes, and torna- does. Eligible activities under the FTA ERP in- clude: • Capital projects to protect, repair, recon- struct, or replace equipment and facilities of a public transportation system, including on an Indian reservation, which are in danger of, or have suffered serious damage as a result of an emergency.322 • Eligible operating costs of public transpor- tation equipment and facilities in an area di- rectly affected by an emergency,323 including evacuation services; rescue operations; tempo- 318 U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-08- 243, EMERGENCY TRANSIT ASSISTANCE: FEDERAL FUNDING FOR RECENT DISASTER, AND OPTIONS FOR THE FUTURE 13 (2008). 319 Id. at 22. 320 Id. at 23. 321 Id. at 30. 322 49 U.S.C. § 5324(b)(1) (2013). 323 49 U.S.C. § 5324(b)(2) (2013). rary public transportation service; or reestab- lishing, expanding, or relocating public trans- portation route service before, during, or after an emergency.324 Recipients will be eligible for operating costs for a 1-year period from the date of an Emer- gency Declaration.325 The Secretary may ex- tend that period for an additional year if there is a compelling need.326 Assistance for capital projects or eligible operating costs will not ex- ceed 80 percent of the net project cost, as de- termined by the Secretary.327 However, the Secretary may waive the nonfederal share.328 These grants cannot be for eligible work and costs outlined in the Stafford Act PAP (listed above).329 On February 6, 2013, FTA announced the availability of $2 billion through the FTA Emergency Relief Fund330 pursuant to the Dis- aster Relief Appropriations Act of 2013,331 pro- viding $10.9 billion in transit relief aid primar- ily for New York and New Jersey. FTA identified three categories of projects for fund- ing:332 • Category One: Projects for eligible ex- penses that affected FTA recipients incurred and disbursed on or before January 29, 2013, in preparation for or response to Hurricane Sandy. • Category Two: Projects for existing con- tractual commitments and contracts for which an affected recipient issued requests for pro- posals or invitations to bid for hurricane re- sponse and recovery projects on or before January 29, 2013. • Category Three: Projects for ongoing force account work for hurricane response and re- covery for which the recipient can submit documentation showing the expense was in the recipient’s budget on or before January 29, 2013. The federal share for all eligible capital and operating expenses for these funds was 90 per- 324 49 U.S.C. §§ 5324(a)(1)(A)-(D) (2013). 325 49 U.S.C. § 5324(b)(2)(A) (2013). 326 49 U.S.C. § 5324(b)(2)(B) (2013). 327 49 U.S.C. § 5324(e)(1) (2013). 328 49 U.S.C. § 5324(e)(3) (2013). 329 49 U.S.C. § 5324(d) (2013). 330 Federal Transit Administration Notice of Availability of Emergency Relief Funds in Response to Hurricane Sandy, 78 Fed. Reg. 8692 (Feb. 6, 2013). 331 Pub. L. No. 113-2, 127 Stat. 4 (2013). 332 78 Fed. Reg. 8692, 8693.

52 cent.333 For disaster areas in Connecticut, New Jersey, and New York, the federal share was 100 percent for eligible recovery operating ex- penses between October 30 and November 14, 2012.334 Local match must be provided from an undistributed cash surplus, a replacement or depreciation cash fund or reserve, or new capi- tal. For expenses within all three categories, state planning, Buy America, and Procurement and Contraction Guidelines were waived.335 3. SSI In 2009, FTA published guidance on control- ling SSI.336 FTA developed the document based on the parameters set out in established pro- grams of USDOT337 and TSA.338 It instructs: For transit, SSI is any information or record whose disclosure may compromise the security of the traveling public, transit employees, or transit infrastructure. SSI may include data, documents, engineering drawings and specifica- tions, and other records whose disclosure could increase the agency’s risk of harm. For example, threat and vulnerability assessments are SSI. SSI requires protection from public disclosure as defined under [the Freedom of Information Act (FOIA)]—that is, SSI is not subject to dis- closure either under FOIA or state “Sunshine Laws” and, by regulation, it must not be dis- closed. Failure to categorize or mark informa- tion as SSI does not change its protected status.339 Of 16 types of records that these USDOT and TSA regulations have determined to be covered as SSI, only 3 apply to public transit, as follows:340 • Security programs and contingency plans issued, established, required, received, or ap- proved by USDOT or DHS. • Vulnerability assessments that are di- rected, created, held, funded, or approved by USDOT or DHS, or that will be provided to 333 Id. at 8695. 334 Id. 335 Id. at 8696. 336 Federal Transit Administration, Sensitive Se- curity Information (SSI): Designation, Markings, and Control (2009), available at http://www.fta.dot. gov/documents/Final_FTA_SSI_(072009)_revised. pdf. Accessed July 5, 2013. 337 49 C.F.R. pt. 15, Protection of Sensitive Secu- rity Information. 338 49 C.F.R. pt. 1520, Protection of Sensitive Se- curity Information. 339 Federal Transit Administration, supra note 336, at 3. 340 Id. at 5. either agency in support of a federal security program. • Threat information held by the Federal Government concerning transportation, trans- portation systems, and cyber infrastructure, including sources and methods used to gather or develop the information. FTA recommends that agency security plans or procedures; records such as training after action reports; and drawings, maps, or designs be reviewed for system vulnerabilities.341 The USDOT and TSA regulations also de- scribe people who can access SSI, including persons who: 342 • Perform official duties, for example, pur- suant to a contract or grant. • Carry out, or supervise or manage persons who are carrying out, DHS- or USDOT- approved, accepted, funded, recommended, or directed transportation security activities, or complete training to carry out such activities. • Provide technical or legal advice to a “cov- ered” person regarding federal transportation- security legal or regulatory requirements or in connection with a judicial or administrative proceeding regarding these requirements. FTA recommends that because having a need to know permits an employee, contractor, or vendor to have access to SSI, transit agen- cies should ensure that their “need to know” requirements do in fact allow all applicable persons to access SSI to perform their work.343 Additionally, proper marking systems and con- trol processes of SSI should be established. 4. Mutual Aid Agreements Arrangements that establish the basis for cooperative assistance between government agencies such as a memorandum of under- standing (MOU) can be highly beneficial plan- ning tools. MOUs can be intended for everyday purposes as well as disaster-response assis- tance and are logical extensions of frameworks for coordinated incident response as outlined in NIMS and HSPD-5. Intergovernmental coop- eration and coordination through the Emer- gency Management Assistance Compact (EMAC)344 was a highlighted success story of the Hurricane Katrina response. EMAC is the 341 Id. 342 49 C.F.R. § 15.7 and § 1520.7. 343 Federal Transit Administration, supra note 336, at 11. 344 Pub. L. No. 104-321, 110 Stat. 3877 (1996).

53 first disaster-relief compact, established in 1996, which offers assistance during governor- declared states of emergency through a system that allows states to send personnel, equip- ment, and commodities to help disaster-relief efforts in other states. Once EMAC was en- abled for Katrina, over 67,000 aid personnel were dispatched to Louisiana and Mississippi through EMAC coordination of 48 states.345 As a model for cooperative agreements between governments, EMAC “addresses the legal is- sues of liability, workers compensation, reim- bursement, and professional licensure—prior to a disaster or emergency when resource needs and timing are critical.”346 The APTA Standards Development Program has established guidance for the development of an MOU to provide mutual aid between transit systems.347 Prior to establishing an MOU between agencies, APTA suggests con- sideration of a wide range of issues covering assets, personnel, and communications/coor- dination, including:348 • Vehicles and Equipment • Develop and maintain a transporta- tion resource list by type, capacity and avail- ability, including mobility device accessible vehicles (i.e., paratransit, taxi, shuttle). • Determine whether equipment is compatible with the environment in which it is going to be used. For example, determine vehi- cle movement limitations (clearances, width, height, turning radius, ramp or lift require- ments, track, signal systems, roads, fuel type, and operating range) to ensure that pickup and dropoff locations work with the equipment used. Be sure to consider lift and ramp de- ployments. • Arrange for alternate sources of fuel and other vehicle maintenance supplies (first in line for supplies). • Review evacuation route informa- tion, including how the transit system fits into 345 U.S. House of Representatives Select Biparti- san House Committee to Investigate the Preparation for and Response to Hurricane Katrina, A Failure of Initiative, at 144 (2009), available at http://katrina. house.gov/full_katrina_report.htm. Accessed July 5, 2013. 346 Id. at 145. 347 American Public Transportation Association, Participating in Mutual Aid, Security Emergency Management Workgroup, APTA SS-SEM-RP-011-09 (2009), abstract available at http://www.apta.com/ resources/standards/Documents/APTA-SS-SEM-RP- 011-09.pdf. Accessed July 5, 2013. 348 Id. at 1. the big picture. Follow existing transit service routes if possible. • Make arrangements with mutual aid partners to arrange for an alternate site to park and store vehicles if the primary site is damaged. • Determine how resources will be managed and deployed. • Identify the extent and limitations of liability coverage available. • Ensure the availability of an alter- nate communication system in the event that normal dispatching networks and telephones are not functional. • Personnel • Consider staff requirements and as- signments for emergencies, and ensure that employees know where the plan is located. • Provide staff training regarding the emergency plan. • Staffing plans should include con- tact and call lists for operators and mainte- nance personnel and other essential personnel. Review labor contract agreements. Perform a realistic assessment of how many employees will be available and how many employees the transit agency can spare to assist neighboring agencies, municipalities, regions, and commu- nity-based organizations. • Pre-identify personnel (manage- ment, administrative or support staff), includ- ing disability transportation providers, who are qualified to operate each type of vehicle. Con- sider level of training and equipment qualifica- tions. Consider developing an emergency de- ployment plan, with a contact list and personnel assigned to prearranged locations and tasks. • Develop a staffing and mobilization plan for moving vehicles and equipment. • Encourage staff members to develop a family emergency plan to provide for the safety and security of their loved ones and per- sonal property (personal planning, food and water, accommodations, arrangements, etc.). • Consider time and personnel limita- tions (geographic proximity, hours of service rules). • Develop a plan for food, shelter, and supplies for employees at the agency (emer- gency packets, MREs (Meal, Ready to Eat), bottled water, blankets and cots, etc.). • Communications/Coordination • Communications capability is vital during emergencies. Communications capabili- ties between providers and receivers of support may not be compatible.