The CDC’s Public Health Law Program published an examination of legal language authorizing responses to incidents involving contamination with radioactive material. The report assessed state and local laws that authorize restriction of movement and decontamination of people during a radiological event.
Heeding guidance promulgated by the Department of Homeland Security (DHS) National Planning Scenarios and lessons learned from national and international radiological and nuclear incidents, jurisdictions nationwide are strengthening emergency preparedness plans. While plans are important, the necessary laws that establish the foundation for many radiological public health response activities have not been comprehensively assessed. Further, the laws that would underpin such an effort vary considerably across jurisdictions. Recently, the CDC identified the need to examine current legal authorities within the United States that provide jurisdictions with the legal authority to decontaminate and restrict the movement of individuals who pose a potential public health threat as a result of being contaminated or potentially contaminated with radioactive material.
Over the past several decades, state and local health departments throughout the United States have developed plans and procedures to better respond to and recover from releases of radioactive material. The legal patchwork of statutes and regulations that support public health response and recovery strategies and procedures in such incidents has, however, been largely unexamined. In 2012, the CDC and the National Association of County and City Health Officials (NACCHO) developed the radiation legal preparedness (RLP) project to examine state and local legal authorities related to the response to and recovery from incidents in which members of the public become contaminated or potentially contaminated with radioactive material. The RLP project focused on identifying answers to two overarching legal questions:
- Do states and select jurisdictions possess the authority to decontaminate persons contaminated with radioactive material?
- Do states and select jurisdictions have the authority to restrict the movement of persons contaminated with radioactive material?
To answer these questions, the CDC conducted a legal assessment of all fifty states, New
York City, Los Angeles, and Washington, D.C. Analysis of the survey results yielded three key findings:
- The language of radiation-related legal authorities varied substantially. Laws fell into four categories: (1) laws that contain express language that grant jurisdictions the authority to decontaminate or restrict the movement of persons contaminated or potentially contaminated with radioactive material; (2) laws that include language that grant jurisdictions broad authority to decontaminate or restrict the movement of contaminated or potentially contaminated persons, regardless of the type of contamination; (3) laws that contain language that grant jurisdictions the authority to decontaminate or restrict the movement of persons contaminated or potentially contaminated with radioactive material on the narrow basis of a particular condition or type of incident, such as a terrorist attack involving radioactive material; and (4) laws that contain language that grant jurisdictions the authority to disinfect or restrict the movement of persons infected with communicable or infectious diseases only.
- Many states and local jurisdictions rely upon isolation and quarantine laws to provide the authority necessary to decontaminate and restrict the movement of individuals. Because these provisions are historically embedded with infectious and contagious disease control language, they may not be well suited to incidents involving contamination with radioactive material.
- A jurisdiction might have expanded authority to decontaminate or restrict the movement of individuals and/or change the type of authority granted, depending on whether or not the state or local jurisdiction formally announces an emergency or public health emergency.
In jurisdictions needing to decontaminate individuals contaminated or potentially contaminated with radioactive material, and in the absence of a state of emergency, 15% have express language, 49% use broad provisions, and 4% are limited to a particular condition or type of incident, such as a terrorist attack involving radioactive material. Currently, 32% of jurisdictions surveyed have language limiting authority to disinfect or restrict the movement of persons infected with communicable or infectious diseases only. Such language differences may impact the legal and tactical approaches adjacent jurisdictions use when responding to incidents involving contamination with radioactive material.
Many jurisdictions have language rooted in traditional isolation and quarantine laws, which may limit the authority to decontaminate and restrict the movement of individuals to communicable diseases. These laws are intended to fight the spread of infectious and contagious diseases and may not be applicable to contamination with radioactive material. Passing radioactive material from one individual to another (so called “secondary contamination”) is not exactly analogous to transmitting a communicable disease. If a particular jurisdiction relies solely on communicable disease language to curtail the potential spread of radioactive material from one individual to another, this implementation may not survive judicial review.
The RLP project findings suggest that jurisdictions may wish to review laws relating to the decontamination and restriction of movement of individuals following incidents involving releases of radioactive material. The potential for radioactive materials to be released into the environment—whether intentional or inadvertent—emphasizes the need for state, tribal, local, and territorial health agencies to develop cross-sector emergency preparedness policies and procedures. By determining in advance the authority that exists to support response and recovery efforts, public health, public safety, and other response communities can better customize the plans to their jurisdiction. A response to an incident involving contamination with radioactive material is a multidisciplinary effort involving law enforcement personnel, local health department representatives, radiation subject matter experts, legal representatives, and other stakeholders. State and local jurisdictions might want to have a comprehensive conversation about their legal authorities with stakeholders before a radiation incident occurs to help ensure a successful response.
See the CDC Report
See also Medical Law Perspectives, February 2013 Report: Emergency Medical Services: Liability and Immunity for Medical Rescue
See also Medical Law Perspectives, June 2012 Report: Too Much, Too Little, Too Late: Injuries from Delays and Failures to Perform CT Scans or Overexposure to Radiation