Legal Perspectives: Mission Critical Planning for Weather Emergencies
Facility owners and renters should bear in mind that their mortgage, lease, or other financing instrument very likely includes a legal obligation to protect and repair a facility. Other contracts or regulations may require that uninterrupted service be provided to the facility for the benefit of third parties or residents. While severe weather is beyond the control of a facility manager, preparing for severe weather is not.
The first step in preparing for severe weather is to perform a risk analysis to evaluate the potential severity of different types of severe weather threats as harm arising from flood, for example, may be quite different from those arising from blizzards.
First among these risks are injury or loss of life resulting from suddenly non-functional infrastructure and equipment. The second tier of risks includes economic risk such as the expenses associated with meeting and recovering from an outage and other storm-related effects. Whether the facility had in place, and utilized, reasonable and prudent measures to prevent or mitigate the effect of the event such as the installation of emergency generation or “black start” capability to protect electronic equipment is among the factors that affect the liability of a facility owner in the event of an outage and other damage.
Facility owners and operators must be aware of state and city resources and regulations regarding severe storm conditions and preparedness. It is possible and desirable to review your utility’s storm plans since state commissions typically require every electric utility to annually submit emergency storm plans to the state agency regulating utilities (such as a PSC or DPU) for approval.
Mission critical facilities should be aware of their utility’s storm plans and emergency contact information. Electric utility emergency storm plans are primarily intended to ensure adequate utility response for storm and storm-like emergencies and aspects of these plans have application to virtually all electrical emergencies.
Facilities should also be aware of emergency telephone contacts with the utility and city or municipality and update lists of names of internal and external contact persons periodically.
Utilities are typically required by state regulators to conduct at least one annual storm drill or emergency exercise involving key company personnel assigned service restoration responsibilities. Usually, these require utilities to seek to enlist the cooperation of significant customers and facilities that would be well advised to request to be involved in the utility’s annual drill.
Utilities are also generally required to file plans with state regulatory officials that specify the criteria or guidelines to be used for determining the severity of electric emergencies, the geographical scope, the estimated time required to restore service and expected damage to the electric system. Utility plans should also identify:
- Utility assigned personnel and the procedures and facilities for external communications
- Mutual aid companies and contractors
- Life support and other special needs customers
- Human services agencies
- Media emergency information providers
A utility may request that the state regulators designate submitted information as confidential such as internal security matters. Any customer facility security information submitted to utilities should be designated confidential.
Typical utility tariff provisions addressing service interruptions (including weather emergencies) embody the concept of force majeure. In that respect a utility is not liable for service that is interrupted or fails from causes beyond its control. In fact the only thing that a utility is typically liable for is gross negligence and it is not even liable for terminations that are directed by the independent system operator (the regional transmission line operator).
Emergency interruption of service provisions typically permit a utility to interrupt service to any customer or customers in the event of an emergency threatening the integrity of its system or other systems with which it is directly or indirectly interconnected if, in its sole judgment, such action will prevent or alleviate the emergency condition.
In addition, a very significant type of tariff provision provides that “customers requiring service which is uninterrupted, unreduced, or unimpaired on a continuous basis, should provide their own emergency or back-up capability.” All mission critical facilities should have such capabilities and should also establish good working relationships with their utilities in order to effectively address emergencies. It is also advisable to make the utility aware of your facility’s weather emergency response plans in the event of a widespread interruption.
There are websites in virtually every city and region that provide information regarding state and municipal emergency response information. The time to check these is before and not during an emergency. Other sources of emergency planning information are insurance companies and trade associations that may well have information regarding emergency plans that have been developed by other mission critical facilities.
The key to avoiding many of the risks of weather emergencies to mission critical facilities is understanding your practical, infrastructure and legal vulnerabilities and reasonably planning in advance for the consequences of severe weather.