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NO. 138. AN ACT RELATING TO PARTICIPATION IN AN INTERSTATE COMPACT FOR EMERGENCY MANAGEMENT.

(S.323)

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1. 20 V.S.A. chapter 4 is added to read:

CHAPTER 4. EMERGENCY MANAGEMENT ASSISTANCE COMPACT

§ 101. EMERGENCY MANAGEMENT ASSISTANCE COMPACT;

ADOPTION

The state of Vermont hereby adopts the emergency management assistance compact. The director of the Vermont emergency management services and the Vermont adjutant general may adopt rules for procedures and practices necessary to implement Vermont’s entry into and participation in the emergency management assistance compact (EMAC).

§ 102. PURPOSE; AUTHORITY; DEFINITIONS - ARTICLE I

(a) The purpose of this compact is to provide mutual aid and assistance among the party states for response to and management of any disaster or emergency declared by the governor of any affected party state.

(b) This compact also provides mutual cooperation among the party states in emergency-related training, exercises, testing, or any other activity related to preparation for an actual declared disaster or emergency. Mutual assistance under this compact may include the use of the national guard force of any party state, either in accordance with the national guard mutual assistance compact or by agreement between states.

(c) For the purposes of this agreement:

(1) “Disaster or emergency” means any occurrence that threatens the health, safety and well-being of the people of any state or region, whether due to natural or man-made disaster, technological hazard, effects of resource shortage, civil disorder, insurgency, or enemy attack.

(2) “Party state” means a state or jurisdiction that is an authorized participant in the compact.

(3) “States” means the several states, the Commonwealth of Puerto Rico, the District of Columbia, and all U.S. territorial possessions.

§ 103. GENERAL IMPLEMENTATION - ARTICLE II

(a) Disasters or emergencies are rarely limited to occurring within political jurisdictional boundaries, making intergovernmental coordination and cooperation essential to effective management of most disasters or emergencies. The nature of a disaster or emergency frequently requires immediate access to additional resources in order to respond promptly and effectively. Most states do not have available all the resources needed to respond to every emergency.

(b) Immediate, efficient, and effective utilization of resources from party states, the United States government or any other source, essential to protect the health and safety of people in the event of a disaster or emergency, is the underlying principle of this compact.

(c) The governor of each party state, or the governor’s designee, shall adopt rules that include the appropriate interstate mutual aid plans and procedures formulated in cooperation with other party states necessary to implement this compact.

(1) Each party state shall be responsible for formulating procedural plans and programs for interstate cooperation in order to carry out the responsibilities required by the compact. Each party state shall:

(A) Review the hazard analyses of each party state in order to determine potential emergencies the party states might jointly suffer.

(B) Review party states’ individual emergency plans, and develop a mechanism for the interstate management and provision of assistance in any potential emergency.

(C) Develop interstate procedures to fill identified gaps, and resolve identified inconsistencies or overlaps in existing plans.

(D) Warn communities adjacent to or crossing the state boundaries.

(E) Protect and assure uninterrupted delivery of services, medicines, water, food, energy and fuel, search and rescue, and critical lifeline equipment, services, and resources, both human and material.

(F) Inventory and establish procedures for the interstate loan and delivery of human and material resources, and procedures for reimbursement or forgiveness.

(G) Provide, to the extent authorized by law, for temporary suspension of any statute or ordinance that restricts the implementation of the responsibilities listed in this subdivision.

(2) A party state may request aid, verbally or in writing, from another party state only by contacting the authorized representative of that state. A request made verbally shall be confirmed in writing within 30 days. A request shall include the following information:

(A) A description of the emergency service function for which aid is needed, such as fire services, law enforcement, emergency medical, transportation, communications, public works and engineering, building inspection, planning and information assistance, mass care, resource support, health and medical services, and search and rescue.

(B) The amount and type of personnel, equipment, materials and supplies needed and a reasonable estimate of the duration of the need.

(C) The specific place and time for staging the aid from the responding party states and a point of contact at that location.

(3) There shall be frequent consultation and free exchange of information, plans, and resource records relating to emergency capabilities between or among state officials who have been assigned emergency management responsibilities, other appropriate representatives of the party states and the United States government.

§ 104. LIMITATIONS - ARTICLE III

(a) Any party state requested to render aid or conduct exercises under this compact shall comply fully with the terms of this compact; provided that the state rendering aid may withhold resources necessary to reasonably protect itself. Each party state shall confer on the emergency forces of a party state, rendering aid within the limits of the requesting party state, the same duties, rights, privileges and powers, except the power to arrest, unless specifically authorized by the receiving state, afforded the forces of the state in which emergency services are being provided. Emergency forces will be commanded and controlled by their regular leaders, but the organizational units will be subject to the operational control of the emergency services authorities of the state receiving aid. These conditions may be activated as needed, only during a declared disaster or emergency, or while exercises or training for mutual aid is in progress or the loaned resources remain in the receiving state, whichever is longer.

(b) A person from a party state rendering aid under this compact who holds a license, certificate, or other permit issued by that party state indicating that the person is qualified in some professional, mechanical, or other skill, shall be deemed licensed, certified, or permitted in the state requesting aid to render aid related to the license certificate or permit for a declared emergency or disaster, subject to limitations and conditions prescribed by the governor of the requesting state.

§ 105. LIABILITY - ARTICLE IV

Officers or employees of a party state rendering aid in another state pursuant to this compact shall be considered agents of the requesting state for the purposes of tort liability and immunity. No party state or its officers or employees rendering aid in another state pursuant to this compact shall be liable for any act or omission performed in good faith in regard to the maintenance or use of any equipment or supplies in connection with rendering aid. Good faith does not include willful misconduct, gross negligence or reckless behavior.

§ 106. SUPPLEMENTARY AGREEMENTS - ARTICLE V

This compact shall not limit the right of any party states to enter into supplementary agreements with other party states, nor shall it limit or restrict any agreements presently in force. Supplementary agreements may include provisions for evacuation and reception of injured and misplaced persons, and the exchange of equipment and supplies and medical, fire, police, public utility, reconnaissance, welfare, transportation and communications personnel.

§ 107. COMPENSATION - ARTICLE VI

Each party state shall pay compensation and death benefits to injured members of their emergency forces and representatives of deceased members who are injured or killed while rendering aid pursuant to this compact, in the same manner and on the same terms as if the injury or death occurred within the party’s own state.

§ 108. REIMBURSEMENT - ARTICLE VII

Upon request by a party state rendering aid in another party state pursuant to this compact, the receiving state shall reimburse the state rendering aid for any loss, except losses pursuant to Article VI of this compact, damage or expense incurred from operating any equipment or providing any services in response to a request for aid. A party state providing aid may assume in whole or in part any loss, damage, expense, or other cost experienced by them, or may loan equipment or donate services to the receiving party state without charge or cost. Two or more party states may enter into supplementary agreements establishing allocation of costs among those states.

§ 109. EVACUATION - ARTICLE VIII

The party states and their emergency management services directors shall develop and implement a plan for the orderly evacuation and interstate transport of any civilian population dislocated by any disaster or emergency. The plan shall include the mode of transport, the number of evacuees that can be received at each location, a method for providing the evacuees with food, clothing, housing, medical care, registration, notification of relatives, and other related services. The plan shall also include a provision for the party state sending evacuees to reimburse the party state receiving for expenses incurred to receive and care for the evacuees, and to provide transportation, food, clothing, medical care and housing. The party state sending the evacuees shall be responsible for the return of the evacuees.

§ 110. IMPLEMENTATION – ARTICLE IX

(a) This compact shall be effective upon enactment into law by any two states. The compact shall be effective as to any other state upon enactment by that state.

(b) Any party state may withdraw from this compact by repealing the law that enacted the compact. A withdrawal shall be effective 30 days after the governor of the withdrawing state has given written notice of the withdrawal to the governors of all other party states. Withdrawal shall not relieve the withdrawing state from obligations incurred prior to the effective date of withdrawal.

(c) Authenticated copies of this compact and any supplementary agreements shall, at the time of approval, be provided to all other party states, and the Federal Emergency Management Agency and any other appropriate governmental agency of the United States.

§ 111. VALIDITY - ARTICLE IX

If any provision of this compact is declared unconstitutional, or the applicability thereof to any person or circumstances is held invalid, the constitutionality of the remainder of this act and the applicability thereof to other persons and circumstances shall not be affected thereby.

§ 112. ADDITIONAL PROVISIONS - ARTICLE X

(a) Nothing in this compact shall be construed to authorize or permit the use of military force by the national guard of any state outside that state for a disaster or emergency for which the President of the United States is authorized to call federal forces into service, or for any purpose for which the use of the U.S. Army or Air Force would in the absence of express statutory authorization be prohibited under 18 U.S.C. § 1385.

(b) The director of the Vermont emergency management service shall be the authorized representative in regard to a request from a party state or by Vermont for aid that does not involve personnel or elements of the Vermont national guard.

(c) The adjutant general shall be the authorized representative for any requests from a party state or Vermont for aid involving the Vermont national guard personnel or elements.

(d) The director of Vermont emergency management shall be responsible for handling any and all documents necessary to obtain reimbursement hereunder for services rendered to a requesting state, or within Vermont by another assisting state.

(e) If the attorney general determines that the liability or tort protections of a party state are inferior to those afforded to emergency or military personnel in Vermont, the requesting party state shall indemnify and hold harmless Vermont personnel for any tort or other liability for their acts or omissions related to providing aid pursuant to this compact in the requesting party state.

(f) This section and 20 V.S.A. § 81 shall be read and construed to complement and not conflict with existing interstate compacts regarding hazardous waste and nuclear incidents.

Sec. 2. 20 V.S.A. § 151 is amended to read:

§ 151. AGREEMENTS OR COMPACTS

Pursuant to the provisions and authority of *[Public Law 435, 82nd]* Congress, as amended by Public Law 564, 84th Congress, 42 U.S.C. §§ 5195a and 5196, the governor is authorized to enter into, amend, supplement and implement agreements or compacts with the executive authorities of other states, including the emergency management assistance compact, providing for mutual*[ ]*military aid, disaster relief, hazard mitigation and emergency preparedness and matters incidental thereto, in case of hazard or natural disaster, invasion or other hostile action, disaster, insurrection, or imminent danger thereof.

Sec. 3. 12 V.S.A. § 5601 is amended to read:

§ 5601. LIABILITY OF STATE

* * *

(e) This section shall not apply to:

* * *

(5) Any claim arising out of *[the combatant]* activities of the National Guard *[during time of war]* performed pursuant to 32 United States Code, §§ 316, 502, 503, 504, 505 or 709, or pursuant to 20 V.S.A. §§ 366, 601 and 602.

Sec. 4. 3 V.S.A. § 1101 is amended to read:

§ 1101. OBLIGATION OF STATE TO DEFEND EMPLOYEES;

DEFINITION

* * *

(b) For purposes of this chapter, "state employee" includes any elective or appointive officer or employee within the legislative, executive or judicial branches of state government or any former such employee or officer. The term includes, without limitation:

* * *

(3) any member of the National Guard ordered into state service pursuant to *[section 601 of Title 20]* sections 366, 601 and 602 of Title 20 or

section 163 or 164 of this title;

* * *

Sec. 5. 20 V.S.A. § 366 is amended to read:

§ 366. SPECIAL DUTY

When it appears that the necessities of the military or public service so require, the commander in chief or designee may designate officers or enlisted *[men]* personnel, or both, for the performance of special duty as the necessity of the case may demand.

Sec. 6. 21 V.S.A. chapter 5, subchapter 5 is amended to read:

Subchapter 5. *[Leave for Reserve Training]* Employment Rights

for Reserve and National Guard Members

§ 491. ABSENCE ON MILITARY *[DUTY; RESTORATION]* SERVICE AND

TRAINING; EMPLOYMENT AND REEMPLOYMENT RIGHTS

(a) Any *[person who is a]* duly qualified member of the “reserve components of the armed forces,” *[who is a member]* of the ready reserve, *[who is a member of]* or an organized unit*[, and]* of the national guard who*[, in order to receive military training with the armed forces of the United States not to exceed fifteen days in any one calendar year,]* leaves a position other than a temporary position in the employ of any employer, for state active duty or to receive military training with the armed forces of the United States and who *[shall give]* *[evidence defining]* notifies the employer of the date of departure and date of return for purposes of military training *[thirty]* 30 days prior to the date of departure *[and who shall further give]* or as soon as practical after being called into state service by the governor shall be granted absence with leave with or without pay. If the employee provides evidence of the satisfactory completion of *[such]* the training immediately *[thereafter, and who]* upon return and is still qualified to perform the duties for such position, the employee shall be reinstated in that position with the same status, pay and seniority*[; provided also, that such]*, including seniority *[shall continue to accrue]* that accrued during *[such]* the period of absence. *[Such period of absence for military training shall be construed as an absence with leave and within the discretion of the employer said leave may be with or without pay.]*

(b) A member of or an applicant for membership in the national guard in either federal or state status as defined in 20 V.S.A. §§ 366, 601, or 602, shall not be denied initial employment, reemployment, retention of employment, promotion, or any benefit of employment by an employer on the basis of membership, application for membership, performance of service, application for service, or obligation to serve.

(c) An employer shall not discriminate in employment against any person because a person has taken any of the following actions:

(1) Enforcement of a provision of this subsection or federal law.

(2) Testified or made a statement in connection with any proceeding under this subsection or under federal law.

(3) Assisted or participated in any investigation under this subsection or federal law.

(4) Exercised any right provided by this subsection or under federal law. § 492. RIGHTS AND BENEFITS

(a) *[Such]* Any absence for military training or state active duty shall not affect the employee's right to receive normal vacation, sick leave, bonus, advancement and other advantages of *[his]* employment normally to be anticipated in *[his]* the employee’s particular position.

(b) Any person who is absent from employment necessitated by service in the national guard as permitted under section 491 of this title shall be entitled to the reemployment rights and benefits provided in 38 United States Code §§ 4312-4318.

* * *

Sec. 6a. 21 V.S.A. § 493 is amended to read as follows:

§ 493. ENFORCEMENT

(a) If any employer fails to comply with any of the provisions of this subchapter, the employee may*[, at his election,]* bring an action at law for damages for *[such]* noncompliance, or apply to the superior court for *[such]* equitable relief as may be just and proper under the circumstances.

(b) The attorney general or a state’s attorney may enforce the provisions of this subchapter by bringing an action in superior court for legal and equitable relief and may conduct civil investigations in accordance with the procedures established in 9 V.S.A. §§ 2458-2461 as though a violation of this subchapter were an unfair act in commerce.

Sec. 7. REPEAL

20 V.S.A. chapter 3, relating to interstate civil defense compact, is repealed.

Approved: May 17, 2000