June 30, 1986
Subject:
Emergency Management Authority of Governor; Local Government Participation — Emergency Planning
Requested By:
Joseph W. Dean, Secretary Department of Crime Control and Public Safety
Question:
Does the Governor have the authority to utilize equipment, supplies, facilities, and personnel of a county or municipality and require local government personnel and agencies to cooperate in emergency management planning and training exercises for a nuclear power plant?
Conclusion:
Yes.
Prior to the granting of a license by the Nuclear Regulatory Commission (NRC) for the operation of a nuclear power plant, an emergency response plan must be approved. There is a further requirement of a training exercise where the plan is tested along with periodic training exercises which involve State and local governments or local governments only. This planning and training through an exercise is performed by the Division of Emergency Management of the Department of Crime Control and Public Safety. This planning, like all other Emergency Management functions, is performed pursuant to Chapter 166A of the General Statutes. The State is responsible for overall planning and coordination of emergency management functions. N.C.G.S. 166A-5. Each county is responsible for emergency management within the county including coordination within the municipalities. N.C.G.S. 166A-7(a). If a county fails to establish an emergency management agency, the Governor may establish one. N.C.G.S. 166A-7(a)(3)
The question has arisen regarding what authority the Governor has to require local governmental personnel and agencies to participate in the planning and training of such emergency plans for fixed nuclear facilities.
The purpose of the North Carolina Emergency Management Act of 1977, N.C.G.S. 166A-1, is to "set forth the authority and responsibility of the Governor, State agencies, and local governments in prevention of, preparation for, response to, and recovery from natural or manmade disasters."
N.C.G.S. 166A-2. The Governor is authorized and empowered:
To utilize the services, equipment, supplies, and facilities of existing departments, offices, and agencies of the State and of the political subdivisions thereof, the officers and personnel of all such departments, offices, and agencies are required to cooperate with and extend such services and facilities to the Governor upon request. This authority shall extend to a state of disaster, imminent threat of disaster or emergency management planning and training purposes.
N.C.G.S. 166A-5(1)a.6 (Emphasis added).
Emergency management is defined to include those measures taken by governments at State levels to minimize the adverse effect of any type disaster including the never-ending preparedness cycle of prevention, mitigation, warning, movement, shelter, emergency assistance, and recovery. N.C.G.S. 166A-4(1).
The fact that the emergency response plan is for a fixed nuclear facility as opposed to hurricanes, floods, chemical spills, or nuclear war does not change the authority of the Governor. He is authorized to require local government officials and agencies to cooperate in both the planning of a response to a possible disaster and to participate in the training or exercising necessary to assure such preparation. It is the intent of the General Assembly that State and local governments be prepared for any potential disaster. If local government is unwilling to cooperate in either planning or training, the Governor has the authority to compel cooperation and participation. Such cooperation and participation include planning and training exercises of emergency response plans for nuclear power plants.
On the other hand, if a county abolishes its emergency management agency, the Governor has authority to establish one in the county. The new agency will have the same authority and responsibility as a county agency.
Unlike other requirements in Chapter 166A, the Governor is authorized to order participation in the planning and exercises or may establish a county-based emergency management upon his own determination that such action is appropriate. There is no requirement for concurrence of the Council of State.
LACY H. THORNBURG Attorney General
Isaac T. Avery, III Special Deputy Attorney General