ML20206J205

Response to Intervenors Conservative Council of North Carolina & W Eddleman Request to Continue Stay Indefinitely. Certificate of Svc & Svc List Encl

ML20206J205
Person / Time
Site:	Harris
Issue date:	06/24/1986
From:	Baxter T CAROLINA POWER & LIGHT CO., NORTH CAROLINA MUNICIPAL POWER AGENCIES, SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	NRC COMMISSION (OCM)
References
CON-#286-681 OL, NUDOCS 8606270034
Download: ML20206J205 (38)

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., . - 3 June 24, 1986 UNITED STATES OF AMERICA NUCLEAR REGULATORY, COMMISSION 4

BEFORE' THE COMMISSION \

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3 I In the Matter of 0 )'I /033 3, [

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CAROLINA POWER & LIGHT COMPANY ) n. ,3;j T3) and NORTH CAROLINA EASTERN \ , Do'ck'et No. 50-400 OL MUNICIPAL POWER AGENCY ) ;<

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(Shearon Harris Nuclear Power ')~

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APPLICANTS' RESPONSE TO CCNC AND EDDLEMAN REQUEST TO CONTINUE STAY INDEFINITELY On June 9, 1986, the Conservation Council of North Carolina and Wells Eddleman (collectively "Intervenors") filed with the Commission a " Request to Continue Stay Indefinitely." Applicants Carolina Power & Light Company ("CP&L") and North Carolina East-ern Municipal Power Agency submit this reply in opposition to In-tervenors' Request. Since Intervenors' Request cites and relies upon their " Comments on Immediate Effectiveness Review of Final Licensing Board Decision" (hereafter "Intervenors' Comments"),

also filed on June 9, 1986, Applicants reply to those comments below as well.1/

1/ See also Applicants' Comments on Immediate Effectiveness, May 8, 1986.

8606270034 860624 PDR ALOCK 05000406 dy G .PDR h}y

s I. The Request for an Indefinite Stay The Final Licensing Board Decision authorized the Director of Nuclear Reactor Regulation, upon making the other requisite findings, to issue to Applicants a license to operate the Harris plant at full power. Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant), LBP-86-11, 23 N.R.C. , slip op, at 186-87 (April 28, 1986).

Intervenors move the Commission "to continue indefinitely its temporary automatic stay as to the Licensing Board's authori-zation of full-power operations." In addition, Intervenors re-quest that "all authorizations for operation, including low-power operations, should be stayed until the Commission completes its immediate effectiveness review and has resolved the issues we raised in our Comments on Im. mediate Effectiveness Review, dated June 9, 1986, and in our appeals of the various Partial Initial Decisions and Final Decision now before the Appeal Board."

l Intervenors indicate that their request is filed pursuant to

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10 C.F.R. 5 2.764(f), the regulation which governs the immediate effectiveness of initial decisions authorizing the issuance of nuclear power reactor operating licenses. The Commission pro-vides there that the initial decision shall become effective insofar as it authorizes operation up to five percent of rated power, and the Director of Nuclear Reactor Regulation shall issue the appropriate license. 10 C.F.R. 5 2.764(f)(1)(i). The Com-

, mission's immediate effectiveness regulations only address

Commission review of an initial decision's authorization for operations greater that five percent of rated power. Consequent-ly, Intervenors' request to stay low power operation has no foun-dation in section 2.764(f).

While Intervenors could'have sought a stay of the Final Li-censing Board Decision's authorization for low power operation, they did not do so.2/ See 10 C.F.R. $ 2.788. Such a motion could have been filed with the Atomic Safety and Licensing Appeal Board or with the Licensing Board within ten days after service of the Final Licensing Board Decision. 10 C.F.R. SS 2.788(a),

) (f). As a section 2.788 motion, Intervenors' Request is both un-timely and in the wrong forum. In addition, Intervenors have not addressed the criteria for a stay specified in 10 C.F.R. 9 2.788(e). Thus, the request to stay low power operation should be denied summarily. Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), CLI-86-6, 23 N.R.C. 130, 134 (1986).

As to full power operations, Intervenors' Request pursuant to 10 C.F.R. 5 2.764(f) relies on their separate Comments on Im-mediate Effectiveness Review.3/

2/ The Licensing Board explicitly alerted the Intervenors, who are represented by counsel, of the opportunity to seek a stay pursuant to section 2.788. See LBP-86-11, supra, slip op. at 187. No party has filed a motion under 10 C.F.R. 5 2.788 to stay any of the Licensing Board's decisions in this proceeding.

3/ Intervenors also refer, in support of their request or mo-tion, to "our proposed findings and briefs." Given the length (Continued Next Page)  ;

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II. Comments on Immediate Effectiveness Review In conducting an immediate effectiveness review, the Commis-sion applies the criteria in 10 C.F.R. $ 2.764(f)(2)(1) to par-ties' comments to determine whether to stay the effectiveness of a licensing board's decision. Philadelphia Electric Co. (Limer-l ick Generating Station, Units 1 and 2), CLI-85-13, 22 N.R.C. 1, 2 (1985). The criteria in section 2.764(f)(2)(i) are:

a. the gravity of the substantive issue;

b. the likelihood that it was decided incorrectly below;

c. the degree to which correct resolution of the issue would be prejudiced by operation pending review; and

d. other relevant public interest factors.

J Intervenors' Comments do not address these criteria, but advance argument under seven subject matter headings. Applicants address each in the order presented in Intervenors' Comments.

A. Alternatives to Harris Amazingly, Intervenors begin their case for withholding im-mediate effectiveness by advancing Mr. Eddleman's petition to waive a Commission regulation. Intervenors' Comments at 2-5.

There could hardly be a less substantial basis for a stay of the Final Licensing Board Decision.

(Continued) and complexity of this proceeding, Applicants assume the Commis--

sion will not undertake the movant's responsibility and search the administrative record to uncover support for Intervenors' Re-quest.

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O E The Commission, by regulation, has provided that:

The presiding officer in an operating license hearing shall not admit contentions proferred by any party concerning need for power or alternative energy sources or alternative sites for the facility for which an operating license is requested.

10 C.F.R. $ 51.106(c)(1984); 10 C.F.R. 6 51.53(c)(1982).

Mr. Eddleman filed with the Licensing Board a petition, pursuant to 10 C.F.R. $ 2.758, to waive this regulation in the Harris pro-ceeding so that he could litigate the need for, and alternatives to, the facility being constructed. The alternative advanced by Mr. Eddleman -- which is not even identified in Intervenors' Com-ments -- is a combination of load shifting, energy storage, solar energy and energy saving measures.

The Licensing Board -- in a decision not cited in Interve-nors' Comments -- found that the Eddleman petition failed to make the required showing that application of the regulation in ques-tion to this case would not serve the purposes for which the rule was adopted.4/ Indeed, the Licensing Board reviewed the Commis-sion's stated purposes in adopting the rule, and concluded that "the purposes underlying the need for power rule fit this case precisely." Carolina Power & Light Co. (Shearon Harris Nuclear 4/ In particular, Mr. Eddleman attempted to show that his alternative would displace the need for the Harris plant to meet increased energy needs. He did not attempt to demonstrate, how-ever, that the Harris plant would not be operated in any event in place of more expensive existing fossil generating' capacity.

Applicants' Response to Eddleman Petition Under 10 C.F.R. $ 2.758 Re Alternatives and Need for Power Rule, August-31, 1983. ,

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Jc Power Plant), LBP-85-5, 21 N.R.C. 410, 440 (1985), aff'd, ALAB-837, 23 N.R.C. (May 29, 1986). The Appeal Board's af-firming opinion -- the existence of which is not even acknowl-

! edged in Intervenors' Comments -- completely endorsed the Licens-ing Board's reasoning and analysis. See ALAB-837, supra, slip op. at 36-41.

The obscure argument advanced in Intervenors' Comments casts t

no doubt on the likelihood that the Licensing and Appeal Boards correctly decided to adhere to the Commission's regulation in this case.5/

i j B. Management Capability Joint Contention I questioned CP&L management's capability to operate the Harris plant safely in view of its operating expe-rience at the Brunswick and Robinson plants.6/ Eight days of hearing in September, 1984, were devoted to this issue, and thirteen of CP&L's top nuclear managers testified and were exam-i l j ined by the Licensing Board and the parties.7/ CP&L senior '

i 5/ The Lovins article attached to Intervenors' Comments was not j presented below and should not be considered. Further, it is i worth noting that the Commission rejected Mr. Lovins' analysis of a these issues when it adopted the rule in question. See 47 Fed.

Reg. 12940, 12941 (1982).

f 6/ The contention was sponsored by the Conservation Council of l North Carolina, Kudzu Alliance, Chapel Hill Anti-Nuclear Group j Effort and Wells Eddleman.

I' 7/ Intervenors did not present any witnesses at the hearing.

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management acknowledged and discussed candidly the fact that CP&L has experienced some difficulties in the operation of the Brunswick Plant in the past.g/ The evidence presented by Appli-cants and the NRC Staff clearly demonstrated, however, that the period since the beginning of 1983 has been one of significant improvement in the overall performance of the Brunswick Plant.9/

On the basis of a detailed analysis of the evidentiary record, the Licensing Board resolved Joint Contention I in favor of the Applicants.10/ Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant), LBP-85-28, 22 N.R.C. 232, 235-57 (1985).

The Licensing Board's ultimate conclusion was that:

The Joint Intervenors' rather miscellaneous collection of evidence unfavorable to CP&L largely derives from events occurring in 1982 and earlier. This evidence has been super-seded (substantially, if not entirely) by a sustained period of improved CP&L management performance since that time. The Applicants, supported by the NRC Staff, have effectively refuted Joint Contention I.

Id. at 257.

The Licensing Board gave considerable weight to the four SALP reports which document the Staff's assessment of CP&L's g/ Utley et al., ff. Tr. 2452, at 4; Tr. 2551-59, 3928-29, 3932-35. This was the Staff's assessment as well. Bemis, ff.

Tr. 3660, at 15; Tr. 3780.

9/ Utley et al. at 31-32; Howe /Dietz, ff. Tr. 3124, at 14; Bemis at 16-18, 23-24.

10/ Intervenors' appeal of this decision is pending before the Atomic Safety and Licensing Appeal Board.

performance at the Harris, Brunswick and Robinson facilities.

Id. at 246-55. The most recent SALP report (referred to below as "SALP IV") available at the time of the hearing -- covering the period February 1, 1983, to April 30, 1984 -- points to CP&L as "a significantly improved utility," identifies " major achieve-ments" in numerous operational areas, and concludes that there were no major weaknesses in the areas evaluated at any of CP&L's three nuclear plants.11/

The Licensing Board also relied upon the testimony of Staff witness Bemis.12/ Intervenors now attempt to commingle the SALP report evidence and Mr. Bemis's testimony, and then attack both on the basis of an alleged conflict of interest on the part of Mr. Bemis. Intervenors' Comments at 6-7. That such a weak argu-ment forms the centerpiece of Intervenors' challenge to the deci-sion on CP&L's management capability is evidence enough that the decision should become effective.

Intervenors' position fails in several respects. First, in an effort to taint SALP IV, Intervenors ascribe to Mr. Bemis an influence over that assessment which simply did not exist. While Mr. Bemis was an important contributor of information to the SALP 11/ SALP IV, ff. Tr. 3660, at 3-7; LBP-85-28, supra, 22 N.R.C.

at 252-53.

I 12/ For approximately two years prior to the hearing, the Re- )

gional Administrator had made Mr. Bemis directly responsible for managing the performance of the NRC inspection and enforcement program at all of the CP&L facilities. LBP-85-28, supra, 22 N.R.C. at 242.

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Review Board, it was that Board which ultimately made the SALP IV evaluation of CP&L by secret ballot.13/ Thus, the SALP IV report was the culmination of a collegial evaluation of CP&L's activi-ties by numerous NRC Staff personnel.14/ Second, in spite of their lengthy cross-examination of Mr. Bemis, Intervenors fail to cite in their comments -- as they failed to do below -- any record support for their assertion of bias. This is nothing more than a theory invented after the hearing. Moreover, it is a the-ory without even logic as a foundation. Intervenors attempt to attribute career benefits to Mr. Bemis if he found improvements in CP&L's performance. Mr. Bemis was not in charge of plant man-agement, however; he was in charge of NRC's inspection and en-forcement effort. There is no reason to speculate that Mr. Bemis would have been judged unfavorably by his supervisors if, on the i

basis of vigorous inspections, he determined that CP&L had not improved.15/

13/ Id. at 247-48; Tr. 3653-56, 3859-60, SALP IV, ff. Tr. 3660, at 1, 8.

14/ The next SALP report -- issued January 15, 1986, and cov-ering the period May 1, 1984, to October 31, 1985 -- continued the positive evaluation of CP&L performance. Mr. Bemis, who is no longer employed by the NRC, was not involved with this report.

While SALP V is not in evidence, it does convincingly demonstrate that the Staff's assessment of CP&L in SALP IV was not a con-cocted aberration.

15/ In addition, such a hypothesized bias could be charged with respect to any Staff employee -- though it would be similarly without foundation.

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4 C. Lack of Finality of Final Decision Intervenors apparently argue that the Final Licensing Board Decision should not be made effective because it did not address all of the issues raised by Intervenors. Intervenors' Comments at 7. Nothing in Intervenors' Comments casts any doubt on the correctness of the Licensing Board's observation that "[i]n issuing this decision, the Board has now made findings of fact and conclusions of law on all matters put into controversy by the parties to the proceeding." LBP-86-11, supra, slip op. at 185 (footnote omitted).

The pendency of an OI investigation into two claims of employee harassment was no bar to issuance of the decision. See Intervenors' Comments at 7. As the Licensing Board stated, "there is no contested issue before the Board, only the possibil-ity of one." LBP-86-11, supra, slip op. at 185 n.50. As the Commission has stated, "the mere pendency of OI investigations

. . . does not raise a serious safety matter." Louisiana Power &

Light Co. (Waterford Steam Electric Station, Unit 3), CLI-86-1, 23 N.R.C. 1, 7 (1986). In any event, the matter is now closed, OI has found that the two former employees were not victims of harassment, and no proposed contentions were filed.16/

16/ See Licensing Board unpublished Memorandum and Order (Re-jecting Late Proposed Contention Concerning Alleged Falsification of Radiation Exposure Records), at 11 (June 13, 1986).

Similarly, the Licensing Board did not err in issuing its final decision simply because Intervenors mailed yet another late proposed contention at.the last minute. Intervenors' Comments at

7. In any case, the Licensing Board since has rejected the pro-posed contention finding, inter alia, that it could have been filed in the Fall of 1985, and that it does not raise a signifi-cant safety concern.17/

Curiously, Intervenors next argue that the Final Licensing Board Decision is defective because: (1) Intervenors plan to file a new contention in the future; and (2) appeals from earlier Licensing Board partial initial decisions are pending. Interve-nors' Comments at 7-8.

Clearly, the mere fact that appeals are pending is not a sufficient basis for withholding effectiveness of the Licensing Board's decisions. The Commission could have adopted regulations requiring that the agency ap' pellate process be completed and a final decision rendered before license issuance. Instead,,the Commission's regulations provide for license issuance based upon Licensing Board authorization, unless a stay is granted or the Commission withholds effectiveness, based upon the criteria set l forth in 10 C.F.R. $ 2.788(e) or 6 2.764(f)(2)(i), respectively.

Neither is the possibility that Intervenors may attempt to introduce new contentions a basis for withholding' effectiveness,

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Id.

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particularly where the burden on a party seeking to reopen the record at this stage to add new issues is a heavy one. See, e.g., Waterford, suora, CLI-86-1, 23 N.R.C. at 5.

In any event, Intervenors mischaracterize the action of the Chatham County Board of Commissiondrs when they state that the county " withdrew from the Emergency Response Plan."18/ Interve-nors' Comments at 7. The resolution adopted by the Board of Com-missioners on May 27, 1986, is Attachment A to this response.

The operative language is that the Board ". . . rescinds all prior approvals of the Shearon Harris Emergency Response Plan pending further critical examination of the unresolved issues."

The resolution does not state that Chatham County has withdrawn from the plan, that it will no longer participate in planning, or that it would not respond in the event of a radiological emergen-cy.19/ No planning deficiencies are identified.

Chatham County has participated in the development of off-site response plans for the Harris plant, pursuant to a let-ter of agreement with CP&L, for a number of years. The county 18/ Chatham is one of four counties located partially within the plume exposure pathway Emergency Planning Zone. There are roughly 2,700 residents in the Chatham County portion of the EPZ.

The population of the entire EPZ is approximately 19,800 --

14,600 of whom reside in Wake County, in which the Harris plant is located.

19/ This differs markedly from the situation in New York with the Shoreham facility. There, Suffolk County adopted resolutions concluding that no local response plan could adequately protect the health, safety and welfare of Suffolk County residents, and directing that no emegency plan be adopted or implemented.

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cooperated with the State of North Carolina Division of Emergency Management in the preparation of a draft plan, with a Chatham r County part, first submitted to the Federal Emergency Management Agency for review in February, 1984. County personnel have been trained on the plan, and participated in the successful pre-licensing, full participation exercise conducted in May,

1985. Chatham County has provided affidavits for the Licensing Board in support of Applicants' motions for summary disposition of Intervenors' contentions on off-site emergency preparedness.

The Licensing Board, confronted with over 200 proposed emer-gency planning contentions, has resolved all contested issues --

both as to the plans and the results of the exercise -- in favor of license issuance. FEMA has reviewed the plans, including the local plan for Chatham County:

On the basis of its review, FEMA finds that the State and local emergency plans are ade-quate and capable of being implemented, and the exercise demonstrated that offsite pre-l paredness is adequate to provide reasonable j assurance that appropriate measures can be taken to protect the health and safety of the public living in the vicinity of the Shearon Harris station in the event of a radiological emergency.20/

The Staff's conclusion is as follows:

On the basis of the staff's review of the applicants' radiological emergency plan, the evaluation of the full-participation exer-cise, and a review of FEMA's finding of State 20/ NUREG-1038 (Safety Evaluation Report related to the opera-tion of Shearon Harris Nuclear Power Plant, Unit No. 1), Supple-ment No. 3 (May 1986), at 13-2.

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t t and local emergency plans and preparedneau, the staff c6ncludes that the state of onsite 's _

and offsite emergency prepareF_ ness at Shearon Harris provides reasonable asskrance that ^

adequate protective measures can and will be ,

taken in. the event of a kadiclogical emergen-cy.21/ ~l t ,

. , s The fact that Chatham County has ttot= formally [ approved the.

plan does not disturb these findings. Under NRd kogulations and' applicable federaltstatutes, the existence of an emergency plan approved by the county is not a precondition to issuance of an operating license. Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-83-13, 17 N.R.C. 741 (1983),

affirming LBP-83-22, 17 N.R.C. 608, 615 (1983). ,

?M long as the plan is sufficiently developed to supp rt the reasonable assur-4 i ance finding of 10 C.F.R'. $ 50.47(a)(1), the local government plan need not be final. Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-336, 23 N.R.C. ,

i slip.op. at 43-44 (May 7, 1986); Louisiana Power & Light Co.

1 (Waterford Steam Electric Station, Unit 3), ALA3-732, 17 N.R.C.

1076, 1104 (1983):, The Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), ALAB-730, 17 N.R.C. 1057, 1066 (1983).

There is no indication that Chatham County will not continue with the finalization of its plan, or that it would not implement the current, federally approved draft in the event of a ra-diological emergency. Indeed, North Carolina law requires that t L'-

21/ Id at 13-3.

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it do so. Attachment B is the North Carolina Emergency Manage-ment Act of 1977, which requires county governments to support the Governor in responding to emergencies of all kinds, and to cooperate in emergency management planning and training. N.C.

Gen. Stat. 5 166A-5(1)a.6'. See Limerick, supra, ALAB-836, slip op. at 46 (discussing similar Pennsylvania law).

In short, the predicted new proposed contention would not warrant withholding immediate effectiveness even if it were now i

before the agency.

D. Major Meltdown Intervenors assert that the immediate effectiveness of the Final Licensing Board Decision should be withheld pending consi-deration of the " threat" of a " major core-damage accident." Ac-cording to Intervenors, "[t]his threat needs to be considered at the Harris Plant because of the substantial health, environ-mental, and economic impact such a release would have on the sur-rounding population and propepty." Intervenors' Comments at 8-9.

Intervenors' arguments are without merit.

As a threshold matter, this argument by Intervenors should not be entertained because Intervenors have not related it to any of the contested issues, which constitute the scope of the adju-I dicatory operating license proceeding, or to any of the Licensing Board's decisions -- which would be the subject of the Commis- l l sion's immediate effectiveness review. Nevertheless, Applicants

( respond to the argument as if it were relevant.

In an attempt to support their assertions, Intervenors point to Chairman Palladino's May 22, 1986 testimony before the Subcom-mittee on Energy Conservation and Power of the House Committee on Energy and Commerce. The Chairman there stated that recent probabilistic risk assessment studies indicate that the likeli-hood of a severe core damage accident occurring in the next 20 years in a population of 100 plants is approximately 12 percent.

But Intervenors mistakenly equate this severe core damage acci-dent with a radioactive release to the environment. To the con-trary, Chairman Palladino emphasized that the " core melt" or "se-vere core damage" accidents are defined in these studies as situations where there is insufficient core cooling to maintain fuel integrity. That does not necessarily mean that substantial core melting would follow, or that radioactivity would be re-leased. For that to happen, an additional sequence of unlikely events would have to occur that would lead to a breach of con-tainment. In short, the estimates of accident probabilities on which Intervenors rely simply cannot be equated with the likeli-hood of adverse public consequences.22/

22/ Intervenors distort the remarks of CP&L Chairman / President, Mr. Sherwood H. Smith, Jr. In a newspaper interview, Mr. Smith indicated that there was "no likelihood" that Harris would expe-rience an accident beyond its design basis. Raleigh News and Observer, "CP&L, federal officials laud plant's safety," (June 8, 1986), at A-31. As Mr. Smith explained, once an accident se-quence is defined as "likely," it is included in the design basis. Further, the observation that thera is no " likelihood" of a beyond design basis accident is a far cry from saying that such (Continued Next Page) l

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. Moreover, as Intervenors have anticipated, their arguments here effectively constitute a challenge to the Commission's reg-ulations, which estab,lish the design basis and licensing require-ments for all commercial nuclear power plants. All rules and regulations of the Commission, and the underlying bases for those rules and regulations, are immune from attack in an individual proceeding unless a petition is first made to the Licensing Board for an exception or waiver. The sole ground for a petition for waiver or exception -- which must be established by affidavit --

is that special circumstances with respect to the subject matter-of the particular proceeding are such that application of the specific challenged rule or regulation would not serve the pur-pose for which it was adopted. If the Licensing Board rules that a prima facie showing has been made in support of the waiver or exception, it must, before ruling, certify the issue directly to the Commission for a determination on the matter. If the Licens-ing Board does not determine that such a prima facie showing has been made, it must deny the petition. 10 C.F.R. $ 2.758; Potomac Electric Power Co. (Douglas Point Nuclear Generating Station, Units 1 and 2), ALAB-218, 8 A.E.C. 79, 89 (1974).

(Continued) an accident is impossible -- the view which Intervenors attribute to Mr. Smith. Finally, actions speak louder than words -- and Applicants' demonstrated commitment to emergency procedures and planning belies Intervenors' allegations of an "it can't happen here" mentality. .

In the instant case, Intervenors have not even attempted a showing that the probability of a severe core damage accident is any greater at Harris than at other nuclear plants. There is no suggestion that In.ervenors' generic concerns have any particular applicability to this case. Thus, Intervenors have failed to specify any "special circumstances" with respect to the Harris plant. Nor have Intervenors here taken the procedural steps nec-essary to challenge the Commission's regulations; they filed no petition or affidavit with the Licensing Board. Under these cir-cumstances, their generalized comments about accident probabilities provide no basis for withholding immediate effec-tiveness of the Final Licensing Board Decision.

E. Ten-Mile Emergency Planning Zone Relying upon the Chernobyl accident and a recent Appeal Board decision -- Long Island Lighting Co. (Shoreham Nuclear Power Station), ALAB-832, 23 N.R.C. 135 (1986), Intervenors " urge the Commission . . . [to consider] adjusting the planning area for evacuation to reflect population and transportation conside-rations." Intervenors' Comments at 10-11. Their arguments re-I flect a fundamental misapprehension of the applicable regulation, ,

l and their reliance on the Chernobyl accident and on ALAB-832 is l misplaced.

The Commission's regulations provide for a plume exposure pathway Emergency Planning Zone ("EPZ") of approximately 10 miles i

in radius. The precise boundaries of the EPZ are to be deter-mined "in relation to local emergency response needs and capabil-ities as they are affected by such conditions as demography, to-

! pography, land characteristics, access routes, and jurisdictional l boundaries." See 10 C.F.R. 5 50.47(c)(2). Thus, the Commis-r j sion's regulations- already provide for the consideration of fac-tors such as population and transportation in the definition of I

an EPZ. However, it is well established that any such adjust-4 ments to the size and configuration of a specific EPZ are to be a relatively minor, on the order of "a mile or two in either direc-tion." See, e.g., Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-781, 20 N.R.C. 819, 831 (1984).

Nor is there any indication that the ten-mile EPZ for U.S.

reactors has been called into question by the Chernobyl accident.

t In his June 5, 1986 testimony before the House Committee on Inte-rior and Insular Affairs, the Director.of the NRC Office of Nuclear Reactor Regulation 23/ noted the substantial design dif-ferences between commercial reactors in the U.S. and the

Chernobyl reactor, and concluded that no immediate changes in the I '

NRC's regulatory practices and policies are necessary. The

( Chairman of the Commission reached the same conclusion in his May 23/ The Director of NRR was the NRC's representative on the -l l Interagency Task Force established by the White House to monitor the health, safety and environmental consequences of the J

Chernobyl accident on the United States.

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.; 22, 1986 remarks before the Subcommittee on Energy Conservation and Power of the House Committee on Energy and Commerce. The In-tervenors' broad-brush comments about the Chernobyl accident pro-vide no technical basis to challenge the considered judgment of the NRC.

The Intervenors' references to rejected Eddleman Contentions 57-C (revised) and 57-C-2 are also to no avail. Those conten-tions sought a 25-mile radius plume EPZ in the direction of Raleigh and Research Triangle Park, solely because of prevailing wind patterns.24/ As Intervenors note, the Licensing Board ruled that those proposed contentions constituted an impermissible at-tack on the "about 10 miles" standard embodied in 10 C.F.R. S l 50.47(c)(2). Licensing Board unpublished Further Rulings on Ad-missibility of Offsite Emergency Planning Contentions Submitted by Intervenor Eddleman, at 6-7 (June 14, 1984). This holding is clearly correct. Diablo Canyon, supra, ALAB-781, 20 N.R.C. at 830-31.

Intervenors argue that the Licensing Board should have nar-rowed Eddleman Contentions 57-C (revised) and 57-C-2 to the parts that are admissible under Shoreham, ALAB-832. But the Shoreham decision provides no support for Intervenors' position. Indeed, the Shoreham Appeal Board expressly affirmed that licensing i

24/ " Wells Eddleman's Contentions on the Emergency Plan (2d Set)" (April 12, 1984), at 4. See also " Applicants' Answer to Eddleman Proposed Contentions on SHNPP Emergency Response Plans" j (April 28, 1984), at 13-15.

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board's rejection of a proposed contention which sought to en-large the EPZ there to a radius of 20 miles. Shoreham, supra, 23 N.R.C. at 147. In any event, it is beyond cavil that a licensing board has no duty to recast an intervenor's contentions so as to make them admissible. Commonwealth Edison Co. (Zion Station, Units 1 and 2), ALAB-226, 8 A.E.C. 381, 406-07 (1974). It is in-cumbent upon intervenors who wish to participate in NRC proceed-ings to structure their participation so that it is meaningful, so that it alerts the agency to the intervenors' position and contentions. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 553 (1978). Ac-j cordingly, Intervenors' criticisms of the size of the Harris EPZ J

provide no basis for withholding immediate effectiveness of the Final Licensing Board Decision.

F. Nighttime Notification in EPZ As another asserted basis for staying immediate effective-l ness, Intervenors allege " extreme difficulty . . . in notifying people in the EPZ." Intervenors' Comments at 11. But the record in this case belies their argument.

The Licensing Board in this case determined that 98.5% of the persons in the first five miles of the EPZ would be alerted by a combination of sirens, tone alert radios and " informal noti-fication."25/ LBP-86-11, supra, slip op. at 164. The Licensing 25/ " Informal notification" is the process by which members of the public who have received an emergency warning spontaneously (Continued Next Page)

i

/ Board further found that 91% of the persons within the area be-tween five and ten miles from the plant would be alerted via si-rens and " informal notification." Id. at 163. Intervenors do not here challenge those factual findings. Rather, Intervenors t

argue that equivalent levels of alerting should be required with-2 in the first five miles and in the five to ten-mile area. But Intervenors do not even refer to the Licensing Board's discussion of the distinction in notification requirements for the two areas of the EPZ. Id. at 119-22. The Licensing Board there relied upon the decision in Final Rule on Emergency Planning, CLI-80-40, i 12 N.R.C. 636, 638 (1980), where the Commission expressly en-dorsed the three-part design objective for notification systems set forth in NUREG-0654. That design objective focuses

, (Continued) notify other members of the public of the emergency. Intervenors characterize this phenomenon as " questionable." However, the ex-istence and efficacy of informal notification processes are rec-ognized in Commission case law. See, e.g., Duke Power Co. (Ca-tawba Nuclear Station, Units 1 and 2), LBP-84-37, 20 N.R.C. 933, 973 (1984); Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), LBP-82-46, 15 N.R.C. 1531, 1534-35 (1982). Historical experience in actual emergencies, as well as the profez ional judgment of two of the nation's leading disaster sociologists (who testified at the Harris hearings),

provide assurance that informal notification can be relied upon in emergency planning as a component of public notification in the event of an actual emergency. See generally " Testimony of David N. Keast, Alvin H. Joyner and Dennis S. Mileti on Eddleman 57-C-3 (Night-time Notification)," ff. Tr. 9375, at 28-43;

" Testimony of Jiri Nehnevajsa Regarding Eddleman Contention 57-C-3," ff. Tr. 9690. Intervenors' vague, unsupported personal skepticisms about informal notification cast no doubt on the con-clusions of the Licensing Board here.

1

. - _ _ - =- , - , _. . .- - - -- . - - . .-

particularly on the first five miles of the EPZ, providing for

-notification within 15 minutes of " essentially 100%" of the popu-lation within 5 mil.es of the plant, with no specified percentage out to 10 miles. Thus, the Commission itself has recognized the very distinction with which the Intervenors here take issue. Ac-cordingly, Intervenors' criticisms are without merit.

Intervenors also assert a need for "several complimentary methodsaof notification, especially at night and during the win-ter." But the Harris public notification system is comprised of several complimentary methode; and the extensive hearings on Eddleman Contention 57-C-3 have already analyzed that system under one nighttime notification scenario -- a summer night --

the only notification scenario which Intervenors raised in the hearing process. In any event, the Licensing Board indicated that the installation of tone alert radios within the first five miles of the Harris EPZ resolved any concerns they might have had regarding the effectiveness of siren notification in winter.

See Letter to Commission from Harris Licensing Board, dated May 16, i

1986, at 3.

Finally, Intervenors rely upon the Licensing Board's November 19, 1985 and May 16, 1986 letters to the Commission con-cerning the adequacy of the regulatory standards for public noti-fication. However, the concerns expressed in those letters have no application to the Harris EPZ. As the May 16, 1986 letter in-dicates, the Licensing Board's " generic" concerns relate only to

" nighttime alerting at reactors which rely entirely on sirens and so-called " informal notification" . . . . (Emphasis supplied.)

Again, the installation of tone alert radios in all residences within the first five miles of the EPZ resolved any such concerns with respect to the Harris plant.26/ Accordingly, Intervenors' allegations about nighttime notification within the Harris EPZ lack merit and provide no basis for withholding immediate effec-i tiveness of the Final Licensing Board Decision.

4 i G. Emergency Plan Full Participation Test Finally, Intervenors point to Applicants' request for an ex-emption from the requirement in 10 C.F.R. Part 50, Appendix E, Section IV.F.1, to conduct a full-participation emergency pre-paredness exercise within 1 year prior to issuance of the first operating license for full power and prior to operation above 5%

of rated power . . . ."27/ Intervenors' Comments at 12. But In-tervenors fail to acknowledge the success of the May 17-18, 1985 full-participation exercise for the Harris EPZ. The NRC inspec-tion team which evaluated the exercise found no violations or 26/ Intervenors incorrectly assert that the Licensing Board re-quired the tone alert radios. Instead, the radios were provided at Applicants' initiative.

27/ Applicants' request for an exemption is presently pending before the NRC Staff. Mr. Eddleman has filed comments on that request. See Letter to Harold R. Denton (NRC) from Wells Eddleman (April 3, 1986). Presumably, those comments will be considered in the disposition of the exemption request.

, 7---- , y

deviations, and stated in the May 19, 1985 public meeting that "the comments from the evaluators were that the exercise was fully successful; the licensee played very well; and the training and commitment to emergency preparedness was obvious in this ex-ercise." NRC Inspection Report No. 50-400/85-20 (June 5, 1985).

Similarly, FEMA found that "the state and local emergency plans are adequate and capable of being implemented and the exercise demonstrated that off-site preparedness is adequate."28/ More-over, the May 1985 exercise was the subject of litigation before the Licensing Board. All issues raised as a result of the exer-cise were fully resolved through the summary disposition process.

The Licensing Board therefore found " reasonable assurance that adequate measures can be taken in the respects raised by the con-tentions to protect the public health and safety in the event of a radiological emergency at the Harris Plant." LBP-86-11, supra, slip op. at 168 et seg.

Intervenors also fail to note Applicants' commitment to con-duct an annual exercise (pursuant to 10 C.F.R. part 50, Appendix E,Section IV.F.2) in late summer 1986, with _the partial partici-pation of the counties in the EPZ. The activities conducted by local offsite emergency response personnel will include:

28/ Memorandum for Edward L. Jordan (NRC), from Richard W. Krimm (FEMA), Aug. 7, 1985, Interim Findings on Offsite Radiological Emergency Response (RER) Plans and Preparedness for the Shearon Harris Nuclear Power Station.

a. Mobilize appropriate local county staffs;

b. Activate local county emergency facilities;

c. Confirm adequacy of local county facilities;

d. Exercise command and control functions during emergency response;

e. Confirm adequacy of communications between facilities and organizations;

f. Exercise the alert notification procedures;

g. Exercise the capability for ambulance support for contaminated injured person; and

h. Exercise the capability for hospital support for '

contaminated injured person.

Further, CP&L, the State of North Carolina, and the local 1

counties have jointly scheduled a February 1987 full-scale local '

exercise, with support from state agencies as necessary for direction, control, and communication.29/ The continuing pro-grams of emergency preparedness training, drills and exercised conducted by CP&L and the' State and local governments provide as-surance that the proficiency of emergency response personnel is being maintained from the May 1985 exercise to the upcoming February 1987 exercise.

Intervenors attempt to bolster their case for a second full-participation exercise by referring to the recent Chatham County resolution. According to Intervenors, "[w]hatever plan would be in effect in the event of an emergency at the Harris plant has not had a full participation test." But, as discussed above, Intervenors attribute undue significance to the Chatham County resolution. The resolution merely rescinds formal County 1

l l

1 29/ Letter to Harold R. Denton (NRC) from A.B. Cutter (CP&L), 1 May 2, 1986, re SENPP Emergency Preparedness Exer-cise/ Supplemental Information.

l

approval of the plan. It gives no indication that, in the event of a Harris emergency, Chatham County would not comply with state law and respond in accordance with existing plans -- the plans that were fully exercised in the May 1985 exercise. Thus, Inter-venors' arguments concerning a full-participation exercise pro-vide no basis for withholding the immediate effectiveness of the Final Licensing Board Decision.

III. Conclusion For the foregoing reasons, and the comments submitted by Applicants on May 8, 1986, the Final Licensing Board Decision should be made immediately effective.

Respectfully submitted, Thomas A. Baxter, P.C.

John H. O'Neill, Jr., P.C.

Delissa A. Ridgway SHAW, PITTMAN, POTTS & TROWBRIDGE 1800 M Street, N.W.

Washington, D.C. 20036 (202) 822-1090 Richard E. Jones Dale E. Hollar CAROLINA POWER & LIGHT COMPANY P.O. Box 1551 Raleigh, North Carolina 27602 (919) 836-8161 Counsel for Applicants Dated: June 24, 1986

June 24, 1986 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )

)

CAROLINA POWER & LIGHT COMPANY )

and NORTH CAROLINA EASTERN ) Docket No. 50-400 OL MUNICIPAL POWER AGENCY )

)

(Shearon Harris Nuclear Power )

Plant) )

CERTIFICATE OF SERVICE I hereby certify that copies of " Applicants' Response to CCNC and Eddleman Request to Continue Stay Indefinitely" were served this 24th day of June, 1986, by deposit in the U.S. mail, first class, postage prepaid, to the parties on the attached Ser-vice List.

/

i  ![.

, Jo H. O'Neill, Jr., P.d .'

n.

\\ y 1

1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )

)

CAROLINA POWER & LIGHT COMPANY )

and NORTH CAROLINA EASTERN ) Docket No. 50-400 OL MUNICIPAL POWER AGENCY )

)

(Shearon Harris Nuclear Power )

Plant) )

SERVICE LIST Nunzio J. Palladino Dr. Reginald L. Gotchy Chairman Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Appeal Board Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Commissioner Thomas M. Roberts U.S. Nuclear Regulatory Commission Mr. Howard A. Wilber Washington, D.C. 20555 Atomic Safety and Licensing Appeal Board Commissioner James K. Asselstine U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 James L. Kelley, Esquire Commissioner Frederick M. Bernthal Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Commissioner Lando W. Zech, Jr. Mr. Glenn O. Bright U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Thomas S. Moore, Esquire Chairman Dr. James H. Carpenter Atomic Safety and Licensing Atomic Safety and Licensing Board Appeal Board U.S. Nuclear Regula' tory Commission 4

U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555

Charles A. Barth, Esquire Dr. Richard D. Wilson Janice E. Moore, Esquire 729 Hunter Street Office of Executive Legal Director Apex, North Carolina 27502 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Mr. Wells Eddleman 812 Yancey Street Docketing and Service Section* Durham, North Carolina 27701 Office of the Secretary U.S. Nuclear Regulatory Commission Richard E. Jones, Esquire l

Washington, D.C. 20555 Vice President and Senior Counsel Carolina Power & Light Company Mr. Daniel F. Read, President P.O. Box 1551 CHANGE Raleigh, North Carolina 27602 P.O. Box 2151 Raleigh, North Carolina 27602 Dr. Linda W. Little Governor's Waste Management Board Bradley W. Jones, Esquire 513 Albemarle Building l U.S. Nuclear Regulatory Commission 325 North Salisbury Street Region II Raleigh, North Carolina 27611 101 Marrietta Street Atlanta, Georgia 30303 H. A. Cole, Jr., Esquire Special Deputy Attorney General Mr. Robert P. Gruber 200 New Bern Avenue Executive Director Raleigh, North Carolina 27601 Public Staff - NCUC P.O. Box 991 Joseph Flynn, Esquire Raleigh, North Carolina 27602 Federal Emergency Management Agency 500 C Street, S.W., i I

John D. Runkle, Esquire Washington, D.C. 20740 Conservation Council of North Carolina Steven Rochlis, Esquire 307 Granville Road Regional Counsel Chapel Hill, North Carolina 27514 Federal Emergency Management Agency 1371 Peachtree Street, N.E.

M. Travis Payne, Esquire Atlanta, Georgia 30309 Edelstein and Payne P.O. Box 12607 Raleigh, North Carolina 27605

.e

Attachment A

, 1 l

l l

. A Resolutien Concerning .

the

. shenron Harria.Ruclear Power Plant k

WHEREA5, the nuclear. power pis st seeident un April 26, 1986 in Chernobyl Ussa has aroused widespread eencern within the United States and throughout the world about the safety or nuclear power plants, and. ,

WHEREA5, theie has surfaced within chatham County s' widespread and intense opposition to the nearly ecapleted )

Shearon Harris Nuclear Power Plant. constructed by Carolina Power and Light Company, and WHEREAS, there are substantial and unresolved issues about the Chatham County evacuation plan, NCW, THEREFORE, EE IT RESOLVED that the Chatham County Board of Commissionera hereby rescinda all prior approvals of the Shearon Harris Emergency Reas onse Plan pending  :

further critical examination of the unresolved inaues, .

This resolution shall be effe'ative upon adoptien.

This the 27th day of May,1986. .

ha %aa i Earl D. Thompson

• Chairs n , .

e '

de) '

erv) 2 -

mazel F. Boone Clerk to the Board l

9

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^ -- - _ _ _ .

A-Attachment B " '

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4 166 A 3 CH.166A. E51ERGENCY 51AN AGE 51ENT ACT l 166A-1 4 Chapter 166A.

Wx r

North Carolina Emergency Management Act.

.N.

S'C-i 166A 10 Establishment of mutual aid l M

• Sec. Short title aareements.

g 166A.1. 166A.2. Purposes. 166A.11. Compensation.

?#- 166A-3. Limitations. 166A.12. Nondiscrimination in emergency

- , 166A.4. Definitions. management.

166A.5. State emergency management. IMA 13. Emergency management personnel.

State of disaster. 166A 14. Immumty and exemption.

i i

b. 166A 6.166A 6.1. Emergency planning: charge.

. 166A.15. No pnvate liabihty

i 166A-7. County and municipal emergency 166A 16. Severabihty.

management.

?g" 166A-8. tacal emergency authonzations.

f 166A.9. Accept services, gifts. grants and

-%' loans.

A,

'S i 166A 1. Short title.

l This Chapter may be cited as " North Carolina Emergency Management Act

!.gf of 1977." (1977, c. 848. s. 2; 1979. 2nd Sess. c.1310. s. 2.)

seal citations to the sections in the normer Chap.

- Editor's Note. - This Chapter is Chapter ter have been added to corresponding sections y

T 166. as rewntten by Session Laws 1977, c. 848. in the Chapter as rewntten and recod4ed.

1

% and recodified. Where appropriate, the histor-h: i 166A 2. Purposes.

i g The purposes of this Chapter are to set forth the authority and responsibility 3'9 of the Governor. State agencies, and local governments in prevention of. prep-aration for, response to and recovery from natural or man made disasters or

[g hostile military or paramilitary action and to:

(1) Reduce vulnerability of people and property of this State to damage.

g injury, and loss of life and property; A- '

(2) Prepare for prompt and etTicient rescue, care and treatment of threatened or affected persons; c,,

7- (3) Provide for the rapid and orderly rehabilitation of persons and

restoration of property; and

$. (4) Provide for cooperation and coordination of activities relating to emer-

-1

, .4

• I gency and disaster mitigation, preparedness, response and recoverya

( b and otTicials of other states, with local and federal governments, with

] interstate organizations and with other private and quasi-of0cial

'& organizations. (1959, c. 337, s.1 1975. c. 734 s.1; 1977, c. 848, s. 2.)

y i u T

I

.s i 166A-3. Limitations.

1 T Nothing in this Chapter shall be construed to:

-> (1) Interfere with dissemination of news or comment on public affairs; but any communications facility or organization, including but not lim-

, b ited to radio and television stations wire services and newspapers.

y.

i g

may be requested to transmit or print public service messages furnishing information or instructions in connection with an emer-t gency, disaster or war; or

! (2) Limit, modify or abridge the authority of the Governor to proclaim l f martial law or exercise any other powers vested in him under the 0 351 T.

l r 2.

1 e..

1 R s..

. .w...s.,

_ g-

y , -, .

,h

• 1 166A-4 CH.166A. E5tERGE:,v . ..wu r. ar..i a w a 9 leeA 6 Constitution, statutes, or common law of this State indecendent of. or in conjunction with, any provisions of this Chapter.11975, c. 734, s. 2 1977, c. 848, s. 2.)

i 166A-4. Definitions.

The following words and phrases as used in this Chapter shall have the following meamngs:

(1) Emergency Management."- Those measures taken by the populace and governments at federal. State and local levels to minimtze the adverse effect of any type disaster, which melude the never.ending preparedness cycle of prevention. mitigation, warning, movement, shelter, emergency assistance and recovery.

(2) " Emergency 5fanagement Agency."- A State or local governmental agency charged with coordination of all emergency management activities for its jurisdiction.

(3) "Disastr.r." - An occurrence or imminent threat of widespread or severe damage, injury, or loss of life or property resulting trom any natural or man-made accidental, military or paramilitary cause.

(4) " Political Subdivision."- Counties and incorporated cities towns and villages. (1951, c.1016. s. 2; 1953. c.1099. s.1; 1955. c. 387, s.1; 1975,

c. 734, ss. 4-6,14; 1977, c. 848, s. 2; 1979, 2nd Sess., c.1310, s. 2.1 OPINIONS OF ATTORNEY GENERAL Regional Council is Not Within Defi. Department of Military and Veterans Affairs.

nition of Political Subdivision. - See opin. 43 N C.A.G 187 fl973i opinion rendered uncer ion of Attorney General to Mr. David L. Britt, forrner 4 166-2.

6 166A-5. State emergency management.

The State emergency management program includes all aspects of prepara-

~

tions for, response to and recovery from war or peacetime disasters.

(1) Governor. - The Governor shall have general direction and control of the State emergency management program and shall be responsible for carrying out the provisions of this Chapter.

a. The Governor is authorized and empowered:

1. To make, amend or rescind the necessary orders. rules and regulations within the limits of the authority conferred upon him herein, with due consideration of the policies of the federal government.

2. To delegate any authority vested in him under this Chapter i

• and to provide' for the s'ubdelegation of any such authority.

3. To cooperate and coordinate with the President and the heads of the departments and agencies of the federal government.

and with other appropriate federal officers and agencies, and with the officers and agencies of other states and local units of government. in matters pertaining to the emergency i management of the State and nation.

j .

?

4. To enter into agreements with the American National Red Cross. Salvation Armv. Stennonite Disaster Service and other disaster relief organizations.

5. To make. amend. or rescind mutual aid agreements in accor-dance with G.S.166A 10.

! 352 i

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_ _ _ - _ _ _ _ _ _ _ . - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - --~~^'" ~ -

i .

~

\ .,.

4 166A.5 EST ACT g 1f i

6. To utilize the services, equipment. supplies and facilities ofexistm

, the political subdivisions thereof. The omcers and personnel I of all such departments, otrices and agencies are requtred to cooperate with and extend such services and facilities to the Governor upon request. This authority shall extend to a state l of disaster irnmment threat of disaster or emergency j managemen* * 'nning and training purposes.zuired to obtain federal assistanc

7. To agree. wh

removal, that ..te State will indemnify the federal govern-ment against any claim arising from the removal.

l j

8. To sell, lend. lease. give. tra'nsfer or deliver materials or per-form l

tions as may be prescribed by any existmg law, and toaccount t property. uested by the e

' b. In the threat of or event of a disaster, or when req::itate, the Gov-governmg body of any political subdivision in the ernor may assume operational control over all or any part of the emergency management functions within this State.

(2) Secretary of Crime Control and Public Safety. - The Secretary of Crime Control and Public Safety shall be responsible to the Governor for State emergency management activities and shall have:

i

a. The power, as delegated by the Governor, to activate the Stat l empowered to authorize and direct the deployment and use of any l~

personnel and forces to which the plan or plans apply, and the usematerials and or distribution of any supplies equipment.

' facilities available pursuant to this Chapter or any other provi-sion of law.

l b. Additional authority, duties, and responsibilities as may be pre-L scribed by the Governor, and he may subdelegate his authority to the appropriate member of his department.

I.

' (3) Functions of State Emergency Management. - The functions of the State emergency management program include; f a. Coordination of the activities of all agencies for emergency j r management within the State. including planning, orgamzing,

j staffing, equipping, training. testing and the activation of emer-l 1

[ gency management programs.

I E

E

b. Preparation and maintenance of State plans for man made or nat-u incorporated into department regulations and into executive i h

s orders of the Governor.

c. Promulgation of standards and requirements for local plans and 1.

g' a .-

programs, determmation of eligibility for State financial assis-tan tance to local governments.

1L d. Development and presentation of training programs and public

,, i. information programs to insure the furnishing of adequately R trained personnel and an informed public in time of need.

2 lp[1 e. Making of such studies and surveys of the resources in this St i .

emergency management maintaining data on these resources.

I j.M and planning for the most efficient use thereof.

l 23 f. Coordination of the use of any private facilities. services, and prop-j  ! .

erty.

-j [.-

L. 353

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li a

1 i

t

l l

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\

j i 166A 6 CH 166A. ESIERGENCY StANAGE51ENT ACT 4 166 A.6 i g. Preparation for issuance by the Governor of executive orders.

proclamations. and regulations as necessary or appropriate; and

h. Cooperation and maintenance of liaison with the other states.

1 federal government and any public or private agency or entity in achievmg any purpose of this Chapter and in implementing pro-l grams for emergency disaster or war prevention, preparation.

response and recovery.

i. Making recommendations. as appropriate. for zoning, building and other land.use controls, and safety measures for securing mobile homes or other nonpermanent or semtpermanent works designed to protect against or mitigate the etTects of a disaster.

j. Coorimation at the use or existing means ot communications and j

supplementing communtcations resources and integrating them into a comprehensive State or State. federal telecommunications or other communications system or network.11951. c.1016. ss. 3.

9: 1953. c.1099. s. 3; 1955. c. 387. ss. 2. 3. 5; 1957. c. 950. s. 5; 1975.

l

c. 734. ss. 9.10.14.16; 1977. c. 848, s. 2; 1979. 2nd Sess.. c.1310

- s.2J s 166A-6. State of disaster.

ta) The existence of a state of disaster may be proclaimed by the Governor, i

' or by a resolution of the General Assembly if either of these Gnds that a disaster threatens or exists. Any state of disaster shall terminate by a proclamation of the Governor or resolution of the General Assembly'. A

! proclamation or resolution declaring or terminating a state of disaster shall be disseminated promptly by means calculated to bring its contents to the attention of the general public and. unless the circumstances attendant upon the disaster prevent or impede, promptly Gled with the Secretary of Crime Control and Public Safety, the Secretary of State and the clerks of superior court in the area to which it applies.

ib) In addition to any other powers conferred upon tho Governor by law, during the state of disa' ster. he shall have the following:

(1) To utilize all available State resources as reasonably necessary to cope with an emergency, including the transfer and direction of personnel or functions of State agencies or units therecf for the purpose of per-forming or facilitating emergency services; 2

, (2) To take such action and give such directions to State and local law-

' enforcement of0cers and agencies as may be reasonable and necessary for the purpose of securmg compliance with the provisions of this j

Chapter and with the orders, rules and regulations made pursuant j

j thereto:

(3) To take steps to assure that measures, including th installation of i

public utilities, are taken when necessary to qual.ty for temporary

-- housing assistance from the federal government when that assistance l

j -3 is required to protect the public health, welfare, and safety; a  !

(4) Subject to the provisions of the State Constitution to relieve any public 2 official having administrative responsibilities under this Chapter of such responsibilities for willful failure to obey an order, rule or regu-M lation adopted pursuant to this Chapter.

t 6 (c) In addition.during a state of disaster. with the concurrence of the Council

! t,;

3 of State, the Governor has the followmg powers:

(1) To direct and compel the evacuation of all or part of the population from any stricken or threatened area within the State, to prescribe routes. modes of transportation, and destinations in connection with evacuation; and to control ingress and egress at a disaster area, the movement of persons within the area, and the occupancy at premises theretn; 354 1

l

~

~ + gg ~

l n 166A.6.1 CH 16eA. E5tERGENCY 51ANAGE5 TENT ACT 4 166A 6.1

. (2) To establish a system of economic controls over all resources. materials and services to include food, clothine, shelter, fuel. rents and wages.

l :ncluding the administratton and eniorcement of any rationing. price

~

freezing or similar federal order or regulation: (

(3) To regulate and control the flow of vehicular and pedestrian traffic the

)

i' consegation of persons m public places or buildmes. lichts and noises

~

- 4 of all ktnds and the maintenance. extension and operation of public -

utility and transportation services and facilities:

(4) To wa'ive a provision of any regulation or ordinance of a State agency ~

or a local governmental unit which restricts the immediate relief of

human suffering

(5) To use contingency and emergenev funds as necessary and appropriate

to provide re' lief and assistance t' rom the effects of a disaster, and to reallocate such other funds as may reasonably be available within the approcriations of the various departments when the severity and mag- -

mtude of such disaster so requires and the contingency and emergency funds are msuf6cient or inappropriate:

(6) To perform and exercise such other functions powers and duties as are necessary to promote and secure the safety and protection of the civil-tan population; (7) To appoint or remove an executive head of any State agency or institu-tion the executive head of which is regularly selected by a State board a

or commission.

a. Such an acting executive head will serve during:

1. The physical or mental incapacity of the regular office holder.

as determined by the Governor after such inquiry as the

,'.. Governor deems appropriate:

2. The continued absence of the regular holder of the office: or

3. A vacancy in the office pending selection of a new executive head.

. b. An acting executive head of a State agency or institution appointed 1 in accordance with this subdivision may perform any act and exercise any power which a regularly selected holder of such office could lawftilly perform and exercise.

, c. All powers granted to an acting executive head of a State agency or i institution under this section shall expire immediately:

, 1. Upon the termination of the incapacity as determined by the i Governor of the officer m whose stead he acts:

) i- 2. Upon the return of the officer in whose stead he acts: or

, 3. Upon the selection and qualification of a person to serve for the unexpired term. or the selection of an acting executive head of the agency or institution bv the board or commission authorized to make such selection. and his qualification.

(8) To procure, by purchase. condemnation. seizure or by other means to construct, lease. transport, store. maintam. renovate or distribute o materials and facilities for emergencv management without regard to the limitation of any existing law. t 1951. c.1016. s. 4: 1955. c. 387. s.

l

4; 1959 c. 284 s. 2; c. 337. s. 4

1975. c. 734. ss.11,14: 1977 c. 848,

s. 2; 1979. 2nd Sess., c.1310. s. 2J i i 166A 6.1. Emergency planning; charge.

I i (a) Every person. firm, corporation or municipality who is licensed to con-struct or who is operating a 6xed nuclear facility for the production of electric-l

. ity shall pay to the State of North Carolina for use of the Department of Crime

, 4 Control and Public Safety an annual fee of at least thirty thousand dollars j ($30,000) for each fixed nuclear facility located within this State. This fee is to 355 i

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1

1 a - -

I 166A-7 CH.166A. Eh!ERGENCY 51ANAGE> TENT ACT 4 166 A-7 be used to assist in or partially defray such costs of planning and implementing emergency response activittes as are required of the State by the Federal Emergency Management Agency for the operation of nuclear facilities. Said fee is to be paid no later than Julv 1 of each vear. This minimum fee may be increased from time to time as the costs of such planning and implementa' tion increase. Such increases shall be by agreement between the State and the

~

licensees or operators of the tixed nuclear facilities.

tbi Licensees or operators of fixed nuclear facilittes are required to pay a fee of thirty thousand dollars iS30.000r for the tirst year on or before November 1.

1981 and for succeeding years on or before July 1 of each year. i1981. c.1123.

j ss.1. 2.)

r s 166A-7. County and municipal emergency management.

fa) The governing body of each county is responsible for emergency management. as detined in G.S.166 A-4. within the geographical limits at such l

i county. All emergency management etTorts within the county will be

' coordinated by the county, including activities of the municipalities within the county.

(1) The governing body of each county is hereby authorized to establish

and maintain an emergency management agency for the purposes

~

contained in G.S.166 A-2.

(2) The governing body of each county which establishes an emergency management agency pursuant to this authorization will appoint a coordinator who will have a direct responsibility for the organization.

administration and operation of the county program and will be sub-ject to the direction and guidance of such governing body.

(3) In the event any county fails to establish an emergency management agency and the Governor, in his discretion. determines that a need exists for such an emergency management agency then the Governor is hereby empowered to establish an emergency management agency within said county.

ib) Allincorporated municipalities are authorized to establish and maintain emergency management agencies subject to coordination by the county. Joint l

agencies composed of a county and one or more municipalities within its borders may be formed.

l (c) Each county and incorporated municipality in this State is authorized to

' make appropriations for the purposes of this Chapter and to fund them by levy of property taxes pursuant to G.S.153A.149 and 160A-209 and by the alloca-tion of other revenues. whose use is not otherwise restricted by law.

J (d) In carrying out the provisions of this Chapter each political subdivision is authorized:

) (1) To appropriate and expend funds. make contracts. obtain and distrib-ute equipment. materials. and supplies for emergency management purposes and to provide for the health and satety of persons and prop-erty, including emercency assistance, consistent with this Chapter; (2) To direct and coordinate the development of emergency management y

,, plans and programs in accordance with the policies and standards set

$ by the State; ~

(3) To assign and make available all available resources for emergency

.f, management purposes for service within or outside of the physical i

,d limits of the 3ubdivision; and

! p (4) To deleeate powers in a local state of emergency under G.S.166A.8 to

~ an appropriate otticial.

l a (e) Each county which establishes an emergency management agency pur-suant to State standards and which meets requirements for local plans and programs may be eligible to receive State tinancial assistance. Such tinancial

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Y CH.166A. EMERGENCY MANAGEMENT ACT ) 166A-10 i 166A.8 j

assistance for the maintenance and operation of a county emergency -

I management program will not exceed one thousand dollars ist.000i for any I l Oscal year and is subject to an appropriation being made for this purpose. '

! Elietbility of each county will be determined annually by the State.

• 1951. c.

l 1016. s. 6'; 1953. c.1099, s. 4; 1957. c. 950 s. 2; 1959. c. 337. s. 5; 1973, c. 620. '

I s. 9; 1975. c. 734. ss.12.14.16; 1977. c. 848. s. 2; 1979. 2nd Sess.. c.1310. s. .

l o..j y

d i 166A-8. Local emergency authorizations. ,

) 3 Procedures governing the declaration of,a local state of emergency: denned (1) A local state of emergency may be ceclared for any disaster. as in G.S.166A-4 under the provisions of Artic;e 36A of G.S. Chapter 14.

(2) Such a declaration shall activate the local ordinances authorized in Nl i- h G.S.14-288.12 through 14 238.14 and any and all applicable local g plans, mutual assistance compacts and agreements and shall also authorize the furnishtng of assistance thereunder.

(3) The timing. publication, amendment and recision of local " state of -

emergency" declarations shall be in accordance with the local ordinance. (1951, c.1016. s. 6; 1953. c.1099. s. 4; 1957. c. 950. s. 2;

. 1959. c. 337. s. 5; 1973, c. 620. s. 9; 1975. c. 734. ss.12.14.16; 1977,

c. 848, s. 2.)

I l

i 166A.9. Accept services, gifts, grants and loans.  !

Whenever the federal government or any agency or ofRcer thereof or of any f

- person. Srm or corporation shall offer to the State, or through the State to any political subdivision thereof, services, equipment. supplies, materials, or funds i by way of gift, grant or loan. for the purposes of emergency management. the 1

State acting through the Governor, or such political subdivision. acting with

the consent of the Governor and through its governing body, may accept such i ofter. Upon such acceptance the Governor of the State or governing body of such I

,- political subdivision may authorize any ofncer of the State or ot the' political subdivision. as the case may be, to receive such services. equipment. supplies.

" materials or funds on behalf of the State or of such political subdivision, and subject to the terms of the offer and the rules and regulations, if any, of the agency making the offer. (1951, c.1016. s. 8: 1373. c. 803. s. 45; 1975. c.19. s.

72; c. 734, ss.13,14; 1977. c. 848. s. 2; 1979. 2nd Sess.. c.1310. s. 2.1 i 166A-10. Establishment of mutual aid agreements.

(a) The Governor may establish mutual aid agreements with other states s .

and with the federal government provided that any special agreements so i *

. negotiated are within the Governor's authority.

tb1 The chief executive of each political subdivision. with the concurrence of the subdivision's governing body, may develop mutual aid agreements for

- reciprocal emergency management aid and assistance. Such agreements shall be consistent with the State emergency management program and plans.

. ;. - (c) The chief executive officer of each political subdivision. with the con.

Q currence of the governing body and subject to the approval of the Governor.

) - may enter into mutual and agreements with local chief executive ofGcers in other states for reciprocal emergency management aid and assistance.

• /, (d) .ilutual aid agreements may melude but are not limited to the furni. Ling or exchange of such supplies. equipment, facilities personnel and services as

.. may be needed; the reimbursement of costs and expenses for equipment, j ' /.. supplies, personnel and similar items; and on such terms and conditions as v ,. deemed necessary. (1951. c.1016. s. 7; 1975 c. 734. ss.14.16; 1977. c. 848. s.

j 2; 1979,2nd Sess.. c.1310. s. 2J

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