November 28, 1988
Mr. David L. Ganje
Brown County Local Emergency Planning Committee
214 Riddle Building
123 1/2 South Main Street
Aberdeen, South Dakota 57401
OFFICIAL OPINION NO. 88-54
Brown County Local Emergency Planning Committee
Dear Mr. Ganje:
You have requested an official opinion from this office with regard to the following factual situation.
FACTS:
The Brown County Local Emergency Planning Committee was implemented pursuant to Title III of SARA, the Emergency Planning and Community Right to Know Act of 1986. SARA required the Governor of South Dakota to appoint a State Emergency Response Commission. That Commission in turn appointed local emergency planning committees. The Brown County Local Emergency Planning Committee is the committee authorized to act for Brown County.
Section 303 of SARA requires that the local committee develop a Local Plan which must include, inter alia, "the methods and procedures to be followed by facility owners and operators and emergency and medical personnel to respond to any release of (hazardous) substances." Section 303(c)(4).
Based on the above facts, you have asked the following questions.
QUESTIONS:
1. Do "first responders" at a release site, who are usually law enforcement, fire and other emergency personnel, have legal authority under Title III to control or evacuate an area, take test samples, and enter the premises on which a release has occurred, once an emergency is determined?
2. Does existing case or statutory law grant such authority under the same circumstances?
3. Further, does the Brown County Local Emergency Plan Annex D-5 grant Brown County such authority? The Brown County Plan at Annex D states that ". . . emergency responders may take actions as may be necessary to insure personal safety of the public and that of other responders on the scene."
IN RE QUESTION NO. 1:
The applicable provisions of the Emergency Planning and Community Right to Know Act (Title III of the Superfund Amendments and Reauthorization Act of 1986) include the mandate that the State Emergency Response Commission, established by order of the Governor, designate emergency planning committees in order to facilitate the preparation and implementation of emergency plans. Title III, § 301(b). The local committees, designated in South Dakota by county, are required to prepare emergency plans which address inter alia:
(c)(2) Methods and procedures to be followed by facility owners and operators and local emergency and medical personnel to respond to any release of a regulated substance;
(c)(3) Designation of a community emergency coordinator and facility emergency coordinators, who shall make determinations necessary to implement the plan;
(c)(7) Evacuation plans;
(c)(9) Methods and schedules for exercising the emergency plans.
Title III, § 303. The emergency plans are to be reviewed by the State Commission for determining what, if any, changes should be made to ensure coordination of the emergency response plans between abutting counties.
Title III contains no provisions addressing the legal authority of persons implementing the emergency plans; its entire focus in this regard concerns the development of plans that can be followed in the event of a release of a hazardous substance. Therefore, the answer to your first question is, no.
IN RE QUESTION NO. 2:
There is legal authority under the common law which authorizes individuals to act to protect themselves and the public in an emergency situation. The privilege in an impending disaster is stated in Restatement of Torts, 2d, § 196.
One is privileged to enter land in the possession of another if it is, or if the actor reasonably believes it to be, necessary for the purpose of averting an imminent public disaster.
See also Prosser, Torts, (4th ed.), § 24. This privilege has developed into the doctrine of necessity, which establishes the right of individuals to take actions in emergency situations which would normally constitute a trespass. South Dakota Department of Health v. Heim, 357 N.W.2d 522 (S.D. 1984). The doctrine has been described as follows:
In the case of fire, flood, pestilence or other great public calamity, when immediate action is necessary to save human life or to avert an overwhelming destruction of property, any individual may lawfully enter another's land and destroy his property, real or personal, providing he acts with reasonable judgment.
. . . If the individual who enters and destroys private property happens to be a public officer whose duty it is to avert an impending calamity, the rights of the owner of the property to compensation are not greater than in the case of a private individual. The most familiar example of the exercise of this right is seen in case of a fire. The neighbors and fireman freely trespass on the adjoining land, and houses are even blown up to prevent the spread of the conflagration. The danger of flood or the existence of a pestilence may call for equally drastic action. However, the permanent appropriation of private property without the payment of compensation therefor cannot be justified under the power.
1 Nichols, Eminent Domain, § 1.43(1); City of Rapid City v. Boland, 271 N.W.2d 60 (1978).
To fall within the scope of this doctrine, the need for the actions which constitute a trespass must be extreme, imperative and overwhelming. Mere expediency is not sufficient. Hale v. Lawrence, 47 Am.Dec. 190, (N.J. 1848); Boland, supra. Once the impending disaster has passed, the government may not rely upon the doctrine of necessity to justify a subsequent destruction of the property. Short v. Pierce County, 78 P.2d 610 (Wash. 1938); Boland, supra.
There are additional sources of authority for the "first responders" to a hazardous substance release. State law prohibits the release of hazardous substances. SDCL 34A-2-21, 34A-12-8. The release of a hazardous substance which threatens or pollutes surface or underground waters is a criminal act and subjects the responsible person to prosecution for a Class I misdemeanor. SDCL 34A-2-75.
Due to the criminal nature of such a release, the actions of emergency personnel are also controlled by the state's criminal laws. Courts have strictly construed the Fourth Amendment of the United States Constitution, and require that governmental agents obtain search warrants prior to entering and searching property in which there is an expectation of privacy (Katz v. United States, 389 U.S. 347, 88 S.Ct. 507 (1967)). Evidence obtained as a result of an unconstitutional search is commonly excluded from evidence in criminal proceedings under the exclusionary rule. Walder v. United States, 347 U.S. 62, 74 S.Ct. 354 (1954).
However, an exception to these general rules has been developed which would apply to a release of a hazardous substance. When there is compelling necessity for immediate action that will not allow for the delay involved in obtaining a warrant to enter property, the entry and taking of appropriate action is justified under the exigent circumstances doctrine.
The exigent circumstances doctrine authorizes warrantless entry by government agents when there is a compelling need for official action and there is no time to secure a warrant. The United States Supreme Court has applied this exception to fires:
. . . A burning building clearly presents a exigency of sufficient proportions to render a warrantless entry "reasonable." Indeed, it would defy reason to suppose that firemen must secure a warrant or consent before entering a burning structure to put out the blaze. And once in a building for this purpose, firefighters may seize evidence of arson that is in plain view.
Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942 (1978); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022 (1975). The Court has since authorized firefighters to make a forceful, unannounced, nonconsensual, warrantless entry into burning buildings, and has stated that this entry includes the right to remain on the premises not only until the fire has been extinguished, but also for a reasonable time while they continue to investigate the cause and origin of the fire. Michigan v. Clifford, 464 U.S. 287, 104 S.Ct. 641 (1984).
The situations in which the County Local Emergency Plan would be activated would involve the release of a hazardous substance to the environment. The criminal nature of such a release and its extreme danger to the public health and safety, create exigent circumstances. The doctrines of necessity and exigent circumstances allow governmental agents to enter property and take necessary actions to protect the public and abate the emergency. One of these necessary actions might involve the taking of samples to determine the nature of the release; one might involve the evacuation of an area; another might involve the destruction of property to prevent the release from escaping and causing additional danger to the public and environment.
These two doctrines, then, give emergency personnel the authority to control or evacuate an area, take samples, and enter premises when an emergency exists. Actions taken pursuant to the county emergency response plans by "first responders" are actions in response to an emergency, and the exigent circumstances and destruction by necessity doctrines would apply.
Finally, by virtue of the criminal nature of many of these releases, statutes provide officers and those assisting officers with a privilege to act. SDCL chapter 22-11, 23-l3-1, 23-13-2. This privilege would also justify actions taken by "first responders" to enter premises and control or evacuate the affected area.
IN RE QUESTION NO. 3:
As discussed above, the authority of first responders is based upon the doctrines of exigent circumstances and necessity. The county emergency response plan provides direction and guidelines for the responders to follow in responding to the emergency. However, the plan itself is not a grant of authority.
Respectfully submitted,
Roger A. Tellinghuisen
Attorney General
