Posts from — August 2011

Peak Hurricane Season on Virginia’s Atlantic Coast: Get Ready!

August typically ushers in some of the hottest temperatures across the country.  Here in Virginia and up and down much of the East Coast we will certainly see our fair share of hot & humid conditions. In conjunction with August heat and humidity also comes the peak of hurricane season. As we are publishing this article, Hurricane Irene is spinning up at 80 mph moving north-northwest off the coast of Puerto Rico. Irene is projected to impact Florida and much of the Southeast and mid-Atlantic in the next five days as a Category 3 storm.

So here comes Irene. How do you decide whether to evacuate and or to stay and Shelter-in-PlaceFEMA suggests you should evacuate in the face of a hurricane if:

  • You are directed by local authorities to do so. Be sure to follow their instructions.
  • You live in a mobile home or temporary structure—such shelters are particularly hazardous during hurricanes no matter how well they are fastened to the ground.
  • You live in a high-rise building—hurricane winds are stronger at higher elevations.
  • You live on the coast, in a floodplain, near a river, or on an inland waterway.
  • You feel you are in danger.

If you are unable to evacuate, FEMA recommends you should:

  • Stay indoors during the hurricane and away from windows and glass doors.
  • Close all interior doors—secure and brace external doors.
  • Keep curtains and blinds closed. Do not be fooled if there is a lull; it could be the eye of the storm – winds will pick up again.
  • Take refuge in a small interior room, closet, or hallway on the lowest level.
  • Lie on the floor under a table or another sturdy object.

The coastal sections of Virginia offer some specifically challenging hurricane evacuation concerns.  The Hampton Roads area in particular is a myriad of highways, bridges, and tunnels that can be difficult to navigate in the best of conditions – let alone in semi-controlled mayhem of an evacuation.  To help facilitate the successful and timely egress in case of a needed evacuation, the Virginia Department of Transportation (VDOT) has issued a 12-page document, “Virginia Hurricane Evacuation Guide.”

Much of the information, key recommendations and discussion points in this guide would apply equally to Virginia residents as they would to anyone else facing the potential of hurricanes.

Facta Non Verba

August 22, 2011   No Comments

Recent Damages Award Shines New Light on Legal Liability for Emergency Preparedness

On July 20th, a  Louisiana judge gave preliminary approval on a 25 million dollar class-action lawsuit settlement agreed to by Tenet Healthcare Corporation and associated plaintiffs.  What were the allegations of this lawsuit?  Basically it boiled down to the failure of a corporation to provide adequate emergency preparedness for those for whom it was responsible.

During Hurricane Katrina, some 1000 individuals were trapped in Memorial Medical Center, owned by Tenet, in uptown New Orleans.  Power failed.  Backup power failed. Utilities failed. Temperatures inside the hospital reached 100 degrees.  Rescue eventually came and many survived.  Unfortunately 45 patients did not.

It seems to us that this court action is a resonating wake up call for all corporations, GO’s, NGO’s, and OGA’s around the country.  The Journal of American Medical Association seems to agree.  In an article published on July 20th, two law professors state that the Tenet settlement “raises the stakes” for other healthcare organizations which run the risk of similar litigation over lack of, or insufficient, emergency preparation.  To extend this statement to all organizations which have a responsibility to employees, visitors, or customers residing in a fixed location is certainly by no means a stretch.

“Tagging hospitals with liability for all patient harms that, in hindsight, could have been prevented by better preparedness creates a nearly impossible legal standard for entities to meet — principally that they be prepared for nearly every contingency in an emergency,” write James Hodge Jr., JD, and Erin Brown, JD, MPH, professors at Arizona State University (italics added).  We would counter, however, that creating a “nearly impossible legal standard” certainly does not mitigate the need for corporations and other organizations to seek a level of sufficient emergency preparedness to be considered prudent and reasonable.  Failure to do so may in fact guarantee a negative outcome to any potential litigation on the matter.

With new light shining on this important topic, we feel promoted to re-post the following blog written by our legal partners, Troutman Sanders.

The Legal Side of Disaster Preparedness for Businesses and Corporations

You have gotten a liability policy of insurance for your company. But, have you considered whether it covers a failure of your company to plan for natural disasters or other critical events? What sort of liability might your company face if it fails to properly plan for such situations? Your company could conceivably be faced with any number of critical events, including a pandemic, a major weather event or natural disaster, a chemical spill or a terrorist attack.

Negligent failure to plan is an emerging area in the liability context. In this regard, the primary questions a company must ask itself in order to properly confront its risks are:

  • Has our company taken reasonable precautions to prevent a reasonably foreseeable critical event, which could take a significant toll on our work force or our customers?
  • Are we prepared in such an event to respond with proper protective and palliative actions for individuals following a reasonably foreseeable critical event?

An employer might be considered negligent if it does not take reasonable steps to eliminate or diminish known or reasonably foreseeable risks that could cause harm. Repeated acts of terrorism on American soil are almost certain to occur in the future; this is no longer an unthinkable event. Reports of natural disasters seem to appear with increasing regularity. Corporations and governmental entities are reasonably expected to prepare for such foreseeable risks.

Consider the massive class action filed against the United States government which grew out of the Hurricane Katrina disaster. The lawsuits are based, in part, upon the alleged failure to plan by the Army Corp of Engineers. As of May 2007, approximately 250,000 people seeking over $278 billion in Katrina-related damages have had lawsuits filed on their behalf against the U.S. government alone. On top of that, numerous other organizations, corporations, public officials, levee boards, insurance companies, and others are being sued for additional billions of dollars in damages.

Katrina Canal Breaches - Photo credit Wikipedia

The residents involved in the Katrina Canal Beaches Consolidated Litigation asserted that the operation and maintenance of the Mississippi River Gulf Outlet (MRGO) caused a levee to be breached catastrophically. The Court found that the Corps’ negligent failure to properly plan the maintenance and operational capacities of the MRGO, in light of the possibility of a natural disaster such as Hurricane Katrina, was a substantial cause for the fatal breaching of the levee and the subsequent catastrophic flooding. While the Court considered several of the government’s defenses to the action, it ultimately concluded that none of these were available to the Corps. Damages were awarded to most of the residents involved in the litigation, based on the fact that they demonstrated that their claims properly arose under the law of negligence as set forth under the Louisiana Civil Code and the Federal Tort Claims Act.

One particularly interesting portion of the decision involves the Court’s analysis explaining that, while planning had been made based upon previous data, no updated plans had been made based upon new data that had come to light:

[A]n agency that has prepared an Environmental Impact Statement (EIS) cannot simply rest on the original document. The agency must be alert to new information that may alter the results of its original environmental analysis, and continue to take a “hard look at the environmental effects of [its] planned action, even after a proposal has received initial approval.” If there remains major Federal action to occur, and the new information is sufficient to show that the remaining action will affect the quality of the human environment in a significant manner or to a significant extent not already considered, a supplemental EIS must be prepared.

The teaching of this decision is clear: companies must have critical event contingency plans in place, and these plans must be continuously updated and revised based upon any new data that may become available. If a company fails to do so, it risks substantial liability based upon such negligence. Because we live in an increasingly litigious society, companies must plan for possible legal attacks from individuals, including employees, customers, and vendors, who have been injured as a result of a company’s lack of planning for a foreseeable critical event.

Guest post by Paige Fitzgerald of Troutman Sanders LLP.
Paige Fitzgerald / Troutman Sanders logo

 

Facta Non Verba

August 15, 2011   No Comments

Continuity of Operations Plan (COOP) for the Public and Private Sector: Enduring, Operating and Recovering from Catastrophe

Nearly every American realizes that the 10-year anniversary of 9/11 is fast approaching – the anniversary of the most devastating terrorist attack on the United States in history. Emergency preparedness and disaster response professionals since these events, in both the private and public sectors, have become increasingly more aware of the term Continuity of Operations or COOP. While certainly not a new contingency function, more organizations need to increase their familiarity with COOP operations. Having an established COOP contingency plan is essential to organizations successfully enduring and recovering from a catastrophic natural, man-made or terrorism/war related disaster.

Continuity of Operations are purpose-built plans and procedures that ensure that businesses, corporations, local, state and national government can carry on all essential functions in the event of an extreme emergency or catastrophic disaster. Recent national and international disasters (terrorist attacks, seismic events, tsunamis, CBRN atmospheric release, and extreme weather emergencies) continue to highlight the necessity for public and private sector organizations to have a COOP and dedicated COOP re-location facilities. The concept of preserving key federal government functions during times of crises, however, dates back to the beginning of the post WWII Cold War with federal government relocation facilities like Mt. Weather in Virginia and the now decommissioned bunker facility at the luxury Greenbrier hotel in WVA managed by FEMA’s Continuity of Operations Division.

A Continuity of Operations Plan outlines steps that an organization will take in the event a disaster interrupts normal operations. Continuity plans require organizations to designate functions as essential or nonessential. Essential functions and critical infrastructure include those jobs that personnel must perform regardless of circumstances. Examples of essential functions obviously vary between public and private sector but generally include: data management and security, medical and health care, law enforcement, communications, utilities (electricity, natural gas), water and sewage treatment, banking, fuel, transportation, food, critical infrastructure protection and more!

Training Resources

FEMA offers two excellent on-line distance learning programs on COOP operations that would be of benefit to any organizational personnel involved with management and continuity of operations.

COOP Re-Location Facilities for Catastrophic Events

Organizations also must ensure that resources or personnel associated with critical functions are secure, geographically disbursed and not concentrated in one area, which raises the risk that those staff members could not perform their duties if a disaster strikes. If your organization is looking into re-locating due to being impacted by a disaster, the following list of factors should be strongly considered.

  1. Relocation Facility: Select a relocation facility that is within proximity to the primary location, but out of the anticipated affected area. The relocation facility must be accessible by ground, (potentially helicopter accessible) and capable of being “hardened”. Among the many factors to consider are personnel capacity, sleeping area, personal hygiene/sanitation, duration of use, vehicle parking and, believe it or not, storage. Depending on your organizations threat profile you’ll need to consider air filtration and positive pressurization. Add shelter repair supplies and tools to the list of items in the facility. Consider FEMA’s Design Guidance for Shelters and Safe Rooms to aid you in relocation facility selection.
  2. Physical Security. Depending on where your relocated facility is situated and the type of organization you are operating, you’ll need to secure the location. For many corporate and governmental activities maintaining a low profile relocation facility can enhance security. Perimeter fencing, CCTV IP pan/tilt/zoom cameras (for remote secure internet viewing), pedestrian and vehicle access controls, installation of solid access doors, improving locks, protective window coatings, intrusion detection, and air filtration are additional items for consideration.
  3. Electricity/Expeditionary Power: Plan to be off the power grid depending on the severity of the disaster event. Generators need to be positioned and secured so as not to become a casualty of the disaster. Understand your power needs and ensure safe storage of fuels (gasoline, diesel, propane or natural gas). Stored quantities of fuels are dependent on duration, demand and anticipated re-supply. Underground storage tanks may solve a number of security issues.
  4. Communications: Not only should you plan for the power grid to be unavailable, but also plan that all terrestrial communications (phone lines and cellular towers) will be unavailable. During the 9/11 terrorist attacks cellular networks that were operational were completely overloaded, hence no commo. This is not to say that they should not be factored into your communications plan, but you’ll need to plan beyond them. Handheld radios are good for facility and limited outside communications, satellite GPS messengers are an excellent means to account for all personnel that will not have access to phones. Satellite devices can provide immediate voice, data and high bandwidth communications.
  5. Water: Potable drinking water is absolutely essential and lots of it. Provisioning large quantities of drinking water for personnel that are active in high stress environments under potentially extreme environmental conditions is a real challenge. Storing water long term takes up a lot of storage space. Additionally, water will be needed for personal hygiene, sanitation and potentially decontamination for CBRN-E events. The larger the facility and number of personnel the more water you’ll need.
  6. Emergency Food Supplies: The approach to food provisioning for a COOP relocation facility should be long-term – meaning meal plans should be made for feeding people for weeks as opposed to days. Also, attention needs to be given to caloric intake for persons that are involved in activities that burn a lot of calories (e.g. law enforcement, utility repairmen, etc.) versus those that will be desk bound, requiring less. We’d suggest you consider meal planning from a “pantry” perspective as opposed to Emergency Meal Modules or MRE’s for feeding groups of people over long periods of time. That is not to say that Emergency Meal Modules and MREs do not have a place in COOP, but you have a number of options available to you.

ICE PACK equipment developers have looked at a wide range of disaster rations, emergency food, menu selections, allergens, vegetarian and religious requirements and the ability to cost effectively provide a balanced and varied meal plan. With the advancements in food storage technology you can now get “great tasting food” that is shelf-stable from 7 to 25 years!

  1. Medical: Organic medical capabilities at EMT/Paramedic levels are necessary along with trained personnel. Getting as many personnel through Red Cross First Aid training is highly advisable, and plan for medical treatment capabilities beyond basic first aid. During a disaster, medical and hospital services are going to be in high demand, so some type of well-provisioned infirmary with hospital-grade supplies at the relocation facility is advisable. This would be especially helpful when dealing with pandemics or when contagions are involved so as not to spread sickness among those in the COOP facility.
  2. Personal Hygiene and Sanitation: This is a must have for individual and family preparedness and an absolute necessity for group disaster preparedness in the COOP. Good personal hygiene is essential for remaining healthy during a disaster and keeping morale high. Sanitary disposal of human waste in large quantities is a real challenge.
  3. Personal Protective Equipment (PPE): The primary focus when looking at Personal Protective Equipment is for CBRN-E or respiratory threats. CBRN-E protective masks are a personal item that must be sized for the end user, properly maintained and equipped with the appropriate chem/bio filters. PAPR (Powered Air Purifying Respirator) systems feature loose fitting head covers which fit children to adults. PAPR’s deliver a constant flow of purified air into the head cover providing positive airflow and protection against biological and particulate contaminants and are even made for infants! Disposable body protection can be provided by a Tyvek coverall w/attached booties, hood w/elastic face piece, elastic wrists and boot cuffs.  Top this ensemble off with inner and outer gloves, rubber boots and many rolls of yellow chem tape. CBRN-E protection is a highly specialized area. Seek professional assistance!
  4. Individual Equipment: Personnel will need to be equipped for in-extremis operations especially if they will be moving in and out of the COOP facility. While you will have a high level of control at and in the relocation facility, while in the field individuals outside the COOP will have to be prepared to fend for themselves. Individuals on foot or in vehicles will need gear very different from what they are accustomed to having and will be more survival oriented. Here is a sneak peak at ICE PACK’s new Exodus personal crisis incident communication system available in Fall 2011.
  5. Weapons: The subject of firearms in defense of the COOP must be addressed from policy, legal and safety perspectives for both public and private sector organizations. There are key lessons to be learned from the aftermath of Hurricane Katrina where the local government actively confiscated firearms, which spawned the Recovery Personal Protection Act of 2006. Whether you choose handguns, carbines, shotguns or rifles make sure that personnel are properly trained in their use and maintenance and store sufficient quantities of ammunition. All firearms and ammunition must be properly secured which will require a good Class V vault or at a minimum a quality safe with humidity protection.

Well conceived Continuity of Operations Plans and their successful execution by key personnel rely to a great extent on each participant’s own family emergency preparedness plan and provisioning. A well practiced plan with the family at home will free up energy and inspire the organizational responder to focus totally on those essential functions for which he or she has been given responsibility in the COOP facility. Confidence in the safety and sustainment of family members goes a long way in relieving concerns of a COOP responder involved in the chaos of a disaster.

FACTA NON VERBA…

August 8, 2011   2 Comments