2005 Montana Legislature

SENATE BILL NO. 140

INTRODUCED BY GEBHARDT

BY REQUEST OF THE DEPARTMENT OF MILITARY AFFAIRS

AN ACT ESTABLISHING AN INTRASTATE MUTUAL AID SYSTEM TO AID IN REQUESTING ASSISTANCE FOR AND RESPONDING TO LOCAL EMERGENCIES AND DISASTERS; ALLOWING A POLITICAL SUBDIVISION OF THE STATE TO WITHDRAW FROM PARTICIPATION IN THE INTRASTATE MUTUAL AID SYSTEM; CREATING THE MONTANA INTRASTATE MUTUAL AID COMMITTEE AND DESCRIBING ITS MEMBERSHIP, DUTIES, AND AUTHORITY; ALLOWING FEDERALLY RECOGNIZED INDIAN TRIBES WITHIN MONTANA TO PARTICIPATE IN THE INTRASTATE MUTUAL AID SYSTEM; PROVIDING FOR ADMINISTRATION OF THE INTRASTATE MUTUAL AID SYSTEM; PROVIDING FOR GOVERNMENTAL IMMUNITY FROM LIABILITY UNDER CERTAIN CONDITIONS; AMENDING SECTION 10-3-1204, MCA; AND PROVIDING AN IMMEDIATE EFFECTIVE DATE AND APPLICABILITY DATES.

WHEREAS, a system for statewide mutual aid among the state's political subdivisions and Indian tribes does not exist; and

WHEREAS, emergencies and disasters transcend political jurisdictional boundaries; and

WHEREAS, the timely commitment of available resources to emergencies and disasters can save lives and protect property; and

WHEREAS, intergovernmental coordination and cooperation are essential for the protection of lives and property during emergencies and disasters; and

WHEREAS, intergovernmental preparation for potential emergencies and disasters is critical to effectively and efficiently respond to actual emergencies and disasters.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:

Section 1. Short title. [Sections 1 through 12] may be cited as the "Statewide Mutual Aid System Act".

Section 2. Policy -- purpose. (1) It is the policy of the state that:

(a) available resources should be made available whenever possible and practical to minimize the negative impacts of disasters and emergencies, regardless of the political jurisdiction in this state within which the disaster or emergency occurs and regardless of the political jurisdictions from which a request for assistance arises or from which or to which the resources are made available;

(b) agreements, either formal or informal, written or oral, between or among political subdivisions of this state, that exist or are entered into for the purpose of providing mutual aid in the event of a disaster or emergency should remain options for political subdivisions and should not be infringed upon or in any way affected by the provisions of [sections 1 through 12]; and

(c) in particular, the provisions of [sections 1 through 12] do not affect any mutual aid agreement, either formal or informal, written or oral, that is made or that may be made pursuant to Title 7, chapter 33, 10-3-209, or 10-3-703 or a request for assistance or aid or assistance or aid provided or received pursuant to Title 7, chapter 33, 10-3-209, or 10-3-703.

(2) It is the purpose of [sections 1 through 12] to:

(a) establish an effective and efficient mutual aid system in which a political jurisdiction can choose to participate that can operate separate from yet integrated with other freestanding mutual aid systems or agreements;

(b) provide to political jurisdictions in the state another option for establishing mutual aid agreements and for requesting, providing, and receiving mutual aid; and

Section 3. Statewide mutual aid system -- definitions. As used in [sections 1 through 12], the following definitions apply:

(1) "Committee" means the Montana intrastate mutual aid committee created in [section 4].

(2) "Disaster" has the meaning provided in 10-3-103.

(3) "Emergency" has the meaning provided in10-3-103.

(4) "Member jurisdiction" means a political subdivision or a federally recognized Indian tribe that participates in the system.

(5) "System" means the Montana intrastate mutual aid system provided for in [section 6].

Section 4. Montana intrastate mutual aid committee -- members -- officers -- meetings -- compensation. (1) There is a Montana intrastate mutual aid committee.

(2) All members of the committee must be appointed by and serve at the pleasure of the state emergency response commission established in 10-3-1204.

(3) The committee shall elect from among its members a presiding officer, a vice presiding officer, and any other officers considered necessary or advisable by the committee.

(4) The committee shall meet at least annually and may meet at the call of the presiding officer or as otherwise considered necessary or advisable by two-thirds of the members.

(5) Members of the committee are not entitled to compensation or to reimbursement for expenses incurred for serving on or participating in the activities of the committee. This subsection does not preclude a member jurisdiction from compensating or reimbursing the expenses of a committee member.

Section 5. Montana intrastate mutual aid committee -- duties. The committee shall:

(1) review the progress and status of intrastate mutual aid;

(2) assist in developing methods to track and evaluate activation of the system;

(3) examine issues facing member jurisdictions in the implementation of intrastate mutual aid;

(4) develop, adopt, and disseminate comprehensive guidelines and procedures that address the following:

(a) projected or anticipated costs of establishing and maintaining the system;

(b) checklists for requesting and providing intrastate mutual aid assistance;

(d) procedures for reimbursing the actual and legitimate expenses of a member jurisdiction that responds to a request for aid or assistance through the system; and

(5) adopt any other guidelines or procedures considered necessary by the committee to implement an effective and efficient system.

Section 6. Intrastate mutual aid system -- initial participation -- withdrawing. (1) There is a Montana intrastate mutual aid system. The system is composed of and may be described as:

(a) the member jurisdictions and any action taken by a member jurisdiction pursuant to [sections 1 through 12];

(b) the committee and any action taken by the committee pursuant to [sections 1 through 12];

(d) any action taken with respect to requesting assistance for an emergency or disaster under [sections 1 through 12]; and

(e) any action taken with respect to responding to a request for assistance for an emergency or disaster under [sections 1 through 12].

(2) Except as provided in subsection (4), every political subdivision of the state is part of the system.

(3) A federally recognized Indian tribe that is located within the boundaries of the state may be a member jurisdiction upon:

(a) adoption by the tribal government of a resolution declaring the tribe's desire to be a member jurisdiction; and

(b) receipt by the division, as defined in 10-3-103, of a copy of the resolution.

(4) A member jurisdiction may elect not to participate or to withdraw from the system upon:

(a) adopting a resolution or ordinance declaring that the member jurisdiction elects not to participate in the system; and

(b) receipt by the division, as defined in 10-3-103, of a copy of the resolution.

(5) This section does not preclude a member jurisdiction from entering into any other agreement with another political subdivision and does not affect any other agreement to which a political subdivision is a party or may become a party.

Section 7. Intrastate mutual aid system -- request for assistance. (1) A member jurisdiction may request assistance from another member jurisdiction:

(a) to prevent, mitigate, respond to, or recover from an emergency or disaster; or

(b) in concert with drills or exercises between member jurisdictions.

(2) A request for assistance must be made by or through the presiding officer of the governing body of the member jurisdiction or the chief executive officer or the chief executive officer's designee of a member jurisdiction. A request may be verbal or in writing and is not required to go directly to the division, as defined in 10-3-103. If a request is verbal, the request must be confirmed in writing within 30 days of the date on which the request was made.

Section 8. Intrastate mutual aid system -- limitation on assistance -- command and control. A member jurisdiction's obligation to provide assistance to prevent, respond to, or recover from an emergency or disaster or in drills or exercises is subject to the following conditions:

(1) A member jurisdiction that responds to a request for assistance from a requesting member jurisdiction may withhold resources to the extent necessary to provide reasonable protection and services for the responding jurisdiction.

(2) The personnel of a responding member jurisdiction are under:

(a) the command control of the responding jurisdiction for purposes that include medical protocols, standard operating procedures, and other protocols; and

(b) the operational control of the appropriate officials of the member jurisdiction receiving the assistance.

(3) The assets and equipment of a responding member jurisdiction are under:

(a) the command control of the responding jurisdiction; and

(b) the operational control of the appropriate officials of the member jurisdiction receiving the assistance.

Section 9. Intrastate mutual aid system -- portability of bona fides. If a person or entity holds a license, certificate, permit, or similar documentation that evidences the person's or entity's qualifications in a professional, mechanical, or other skill and the assistance of the person or entity is requested by a member jurisdiction, the person or entity is:

(1) considered to be licensed, certified, permitted, or otherwise documented in the member jurisdiction that requests assistance for the duration of the emergency or disaster or of the drills or exercises; and

(2) subject to any legal limitations or conditions prescribed by the governing body or chief executive of the member jurisdiction that receives the assistance.

Section 10. Intrastate mutual aid system -- reimbursement -- dispute resolution. (1) A requesting member jurisdiction shall reimburse each member jurisdiction that responds to a request for aid or assistance and renders aid under the system unless the member jurisdiction rendering aid donates all or a portion of the cost of the assistance to the requesting member jurisdiction.

(2) A request for reimbursement must be in accordance with procedures developed by the committee.

(3) If a dispute regarding reimbursement arises between a party that requested assistance under the system and a party that provided assistance under the system, the involved parties shall make every effort to resolve the dispute within 30 days of written notice of the dispute given by the party asserting noncompliance to the other party.

(4) (a) If the dispute is not resolved within 90 days from the date of the notice, either party may request that the dispute be resolved through arbitration.

(b) All arbitration occurring under this section must be conducted pursuant to the commercial arbitration rules and mediation procedures of the American arbitration association as the rules and procedures exist on the date of notification described in subsection (3).

Section 11. Intrastate mutual aid system -- workers' compensation coverage. (1) If a person is an employee of a member jurisdiction that responds to a request for assistance from a member jurisdiction and the person sustains injury in the course of providing the requested assistance, the person is entitled to all applicable benefits, including workers' compensation benefits, normally available to the person as an employee of the member jurisdiction that employs the person.

(2) If the person's injury results in the person's death, the person's estate must receive any additional state and federal benefits that may be available for death in the line of duty.

Section 12. Liability -- immunity. (1) All activities performed pursuant to a request for assistance as provided for in [sections 1 through 12] are considered to be governmental functions.

(2) Except as provided in [section 11], a person responding to a request for assistance who is under the operational control of the requesting member jurisdiction, as provided for in [section 8], is considered for the purposes of liability to be an employee of the requesting member jurisdiction.

(3) Except in the case of willful misconduct, gross negligence, or bad faith, the member jurisdiction or an employee of the member jurisdiction is immune from liability for the death of or injury to any person or for damage to property if the member jurisdiction or the employee of the member jurisdiction is complying with or attempting to comply with the system.

Section 13. Section 10-3-1204, MCA, is amended to read:

"10-3-1204. State emergency response commission. (1) There is a state emergency response commission that is attached to the department for administrative purposes. The commission consists of 27 members appointed by the governor. The commission must include representatives of the national guard, the air force, the department of environmental quality, the division, the department of transportation, the department of justice, the department of natural resources and conservation, the department of public health and human services, a fire service association, the fire training school, the emergency medical services and injury prevention section of the health policy and services division in the department of public health and human services, the department of fish, wildlife, and parks, Montana hospitals, an emergency medical services association, a law enforcement association, an emergency management association, a public health-related association, a trucking association, a utility company doing business in Montana, a railroad company doing business in Montana, the university system, a local emergency planning committee, a tribal emergency response commission, the national weather service, the Montana association of counties, the Montana league of cities and towns, and the office of the governor. Members of the commission serve a term of 4 years and may be reappointed. The members shall serve without compensation. The governor shall appoint two presiding officers from the appointees, who shall act as copresiding officers.

(2) The commission shall implement the provisions of this part., and in so doing, the The commission may create and implement a state hazardous material incident response team to respond to incidents. The members of the team must be certified in accordance with the plan.

(3) The commission may enter into written agreements with each entity or person providing equipment or services to the state hazardous material incident response team.

(4) The commission or its designee may direct that the state hazardous material incident response team be available and respond, when requested by a local emergency response authority, to incidents according to the plan.

(5) The commission may contract with persons to meet state emergency response needs for the state hazardous material incident response team.

(6) The commission may advise, consult, cooperate, and enter into agreements with agencies of the state and federal government, other states and their state agencies, cities, counties, tribal governments, and other persons concerned with emergency response and matters relating to and arising out of incidents.

(7) The commission may encourage, participate in, or conduct studies, investigations, training, research, and demonstrations for and with the state hazardous material incident response team, local emergency responders, and other interested persons.

(8) The commission may collect and disseminate information relating to emergency response to incidents.

(9) The commission may accept and administer grants, gifts, or other funds, conditional or otherwise, made to the state for emergency response activities provided for in this part.

(10) The commission may prepare, coordinate, implement, and update a plan, which that coordinates state and local emergency authorities, to respond to incidents within the state. The plan must be consistent with this part. All state emergency response responsibilities relating to an incident must be defined by the plan.

(11) The commission has the powers and duties of a state emergency response commission under the federal Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C. 11001, et seq., except that the division shall oversee the creation, annual local review, and exercise and revision of the local emergency operations plan as provided by state law.

(12) The commission shall promulgate rules and procedures limited to cost recovery procedures, certification of state response team members, and deployment of the state hazardous material incident response team, which must be a part of the plan.

(13) The commission shall act as an all-hazard advisory board to the division by:

(a) assisting the division in carrying out its responsibilities by providing the division with recommendations on issues pertaining to all-hazard emergency management; and

(b) authorizing the establishment of subcommittees to develop and provide the recommendations called for in subsection (13)(a).

(14) The commission shall appoint the members of the Montana intrastate mutual aid committee provided for in [section 4].

(14)(15) All state agencies and institutions shall cooperate with the commission in the commission's efforts to carry out its duties under this part."

Section 14. Codification instruction. [Sections 1 through 12] are intended to be codified as an integral part of Title 10, chapter 3, and the provisions of Title 10, chapter 3, apply to [sections 1 through 12].

Section 15. Two-thirds vote required -- contingent voidness. Because [section 12(3)] limits governmental liability, Article II, section 18, of the Montana constitution requires a vote of two-thirds of the members of each house of the legislature for passage. If [this act] is not approved by at least two-thirds of the members of each house of the legislature, then [section 12(3)] is void.

Section 16. Notification to tribal governments. The secretary of state shall send a copy of [this act] to each tribal government located on the seven Montana reservations and to the Little Shell band of Chippewa.

Section 17. Saving clause. [This act] does not affect rights and duties that matured, penalties that were incurred, or proceedings that were begun before [the effective date of this act].

Section 18. Severability. If a part of [this act] is invalid, all valid parts that are severable from the invalid part remain in effect. If a part of [this act] is invalid in one or more of its applications, the part remains in effect in all valid applications that are severable from the invalid applications.

Section 19. Effective date. [This act] is effective on passage and approval.

Section 20. Applicability. (1) [This act], except [sections 7 through 12], applies on [the effective date of this act].

(2) [Sections 7 through 12] apply October 1, 2005.

Section 21. Transition. Because [section 4], creating the Montana intrastate mutual aid committee, is effective and applicable on passage and approval, the state emergency response commission established in 10-3-1204 will not have had the opportunity to appoint the members of the committee. Therefore, the state emergency response commission shall appoint the members of the Montana intrastate mutual aid committee before August 1, 2005.

- END -

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