The opinion
OFFICE OF THE ATTORNEY GENERAL
State of California
JOHN K. VAN DE KAMP
Attorney General
______________________________________
OPINION :
: No. 89-1001
of :
: MAY 8, 1990
JOHN K. VAN DE KAMP :
Attorney General :
:
RONALD M. WEISKOPF :
Deputy Attorney General :
:
________________________________________________________________________________
THE HONORABLE WILLIAM MEDIGOVICH, DIRECTOR, OFFICE OF
EMERGENCY SERVICES has requested an opinion on the following
question:
How will the decommissioning of the Rancho Seco nuclear
powerplant affect the contribution that is made under Government
Code section 8610.5 by the Sacramento Municipal Utility District
and other utilities with nuclear powerplants for reimbursement of
State and local agency costs for nuclear powerplant emergency
planning and preparedness?
CONCLUSION
The decommissioning of the Rancho Seco nuclear powerplant
will not affect the contribution that is made under Government Code
section 8610.5 by the Sacramento Municipal Utility District and
other utilities with nuclear powerplants to reimburse State and
local agency costs for nuclear powerplant emergency planning and
preparedness until the federal Nuclear Regulatory Commission
determines that such preparedness is no longer necessary in
connection with the Rancho Seco facility. Thereafter, the
Sacramento Municipal Utility District will no longer be responsible
for contribution under the section and the remaining two utilities
with nuclear powerplants in California will share equally in
reimbursing the overall State costs for nuclear powerplant
emergency preparedness under the section. Those utilities will
also remain individually responsible for reimbursing the particular
local costs of preparedness occasioned by their individual
facilities.
1. 89-1001
ANALYSIS
Under section 8610.5 of the Government Code, the costs
incurred by State and local agencies in carrying out nuclear
powerplant emergency planning and preparedness, that are not
reimbursed with federal funds, is borne by "utilities with existing
nuclear powerplants having a generating capacity of 50 megawatts or
more." (§ 8610.5.) 1 The Office of Emergency Services notifies
each such utility of the amount of its share of those costs and the
utility must then pay that amount to the Controller for deposit
into the Nuclear Planning Assessment Special Account in the State
General Fund. ( Ibid.) The appropriate State and local agency
costs are then paid from the Account by the Controller upon
certification by the Office of Emergency Services. (Ibid.)
The Sacramento Municipal Utility District ["SMUD"],
permanently ceased power operation at its Rancho Seco nuclear
facility on June 7, 1989, and defueling of the reactor was
completed on December 8, 1989. (See, 55 Fed.Reg. 7394 (Mar. 1,
1990).) The nuclear fuel removed from the reactor core is
currently being stored at the site in a "spent fuel pool."
"Defueling is the last major action associated with an operating
reactor." ( Ibid.) SMUD will now be initiating steps to
"decommission" Rancho Seco, i.e., steps to remove it safely from
service as a commercial producer of electricity and to reduce the
residual radioactivity at the site to a level that will permit
release of the property for unrestricted use. (Cf., 10 CFR
§ 50.2.)
We are asked how the decommissioning of Rancho Seco will
affect the contributions that SMUD and other utilities with nuclear
powerplants make to the Nuclear Planning Assessment Special Account
under section 8610.5. We conclude that until such time as the
federal Nuclear Regulatory Commission determines that it is no
longer necessary for the Sacramento Municipal Utility District to
maintain emergency preparedness in connection with the Rancho Seco
facility, SMUD will continue to be responsible for its appropriate
share of State and local agency costs under the section. However,
when the Nuclear Regulatory Commission does determine that
emergency preparedness is no longer necessary, the remaining State
agency costs for nuclear powerplant emergency preparedness (no
longer including preparedness efforts for Rancho Seco) will be
shared equally by the two utilities continuing to operate nuclear
powerplants in California with a generating capacity of 50
megawatts or more. Those utilities will also remain responsible
for the costs of local agency emergency preparedness efforts
associated with their individual facilities.
1
Section 8610.5 is set forth in full as Appendix A to this
Opinion.
2. 89-1001
Government Code section 8610.5 (Stats. 1979, ch. 956,
§ 1) was enacted in response to the incident at the Three Mile
Island nuclear powerplant at Harrisburg, Pennsylvania on March 28,
1979. (See Selected 1979 California Legislation: Energy; Nuclear
Power Plant Emergency Procedures (1979-80) 11 Pac. L.J. 515, 515.)
After the incident, the Legislature held hearings on the ability of
our State and local agencies to respond to emergencies at nuclear
powerplants (id. at 515 fn. 1) and thereafter enacted the section
to compel a study of the consequences of a serious nuclear
powerplant accident in California, with the aim of having the State
Nuclear Powerplant Emergency Response Plan, and local emergency
response plans, revised and upgraded accordingly.2
More particularly, it required the Office of Emergency
Services ["OES"], in consultation with the State Department of
Health Services and affected counties, to (i) "investigate the
consequences of a serious nuclear powerplant accident for each of
the four nuclear powerplants in California with a generating
capacity of 50 megawatts or more" and, on conclusion of the study,
(ii) to revise its Nuclear Powerplant Emergency Response Plan to
reflect the information provided in it, and (iii) assist local
authorities prepare or upgrade their emergency response plans to
reflect the study's new planning guidelines. (§ 8610.5 as added by
Stats. 1979, ch. 956, § 1, supra.) The section also expressed the
intention of the Legislature that all State and local costs related
to carrying out its provisions, not reimbursed by federal funds,
"be borne by the operators of the four existing nuclear powerplants
having a generating capacity of 50 megawatts or more...." (Ibid.)
The Nuclear Planning Assessment Special Account was created in the
General Fund as the vehicle for that cost reimbursement.
In 1988, following the incident at the Chernobyl nuclear
reactor in the Ukraine, the California Legislature adopted the
Radiation Protection Act of 1988. (Stats. 1988, ch. 1607, § 4,
adding ch. 6.99 (§ 25572 et seq.) to div. 20 of the Health & Saf.
Code.)3 Basically, that Act required the State Department of
2
After the Three Mile Island incident, the federal Nuclear
Regulatory Commission also revised and updated its regulations
relating to required emergency planning and preparedness. (See
Emergency Planning, 45 Fed.Reg. 55402 (Aug. 19, 1980).)
3
The legislation followed the recommendations of a Task Force
on California Nuclear Emergency Response, which had been
established in 1986 (Sen.Res. 48) to "formulate a report on the
State['s] ... medical and emergency response capacity in the event
of a major nuclear facility accident...." (Stats. 1988, ch. 1607,
§ 3.) "In 1987, the task force reviewed emergency response plans
for the State's nuclear power facilities, heard testimony at public
hearings held near each of the State's ... nuclear power
facilities, and reviewed data emerging from the Chernobyl nuclear
3. 89-1001
Health Services and the Office of Emergency Services to undertake
certain responsibilities to ensure that an adequate response by
State and local agencies could be made in the event of a nuclear
powerplant accident. (Health & Saf. Code, §§ 25574, 25582.)4 The
same legislation which enacted the Radiation Protection Act also
amended section 8610.5 of the Government Code to provide for the
reimbursement of State and local costs relative to carrying out the
Act's provisions from the Nuclear Planning Assessment Special
Account. (Gov. Code, § 8610.5 as amended by Stats. 1988, ch. 1607,
§§ 1, 5; cf., Health & Saf. Code, § 25582, subd. (b).)
Section 8610.5 thus presently requires State and local
agency costs that are incurred in implementing both its provisions
as well as those of the Radiation Protection Act, which are not
accident." (Ibid.)
4
The Act required the Department of Health Services to (a)
develop additional communication systems for quick dissemination of
emergency response information in the event of a nuclear power
plant emergency; (b) to establish a radiation emergency screening
team --composed of three individuals with expertise in medicine,
radiation biology, radiation casualty management, emergency
preparedness and disaster response, and public health, who would be
available for immediate travel to the scene of a major radiation
accident where they would have responsibility of assisting other
emergency response agencies or persons in making decisions
regarding initial patient management and casualty evacuation; (c)
to designate special medical facilities for the management and
treatment of casualties of a nuclear powerplant accident; (d) to
undertake certain functions in the Ingestion Pathway Zone; and (e)
to ensure, in coordination with affected counties and the Office of
Emergency Services, that ingestion pathway and recovery/reentry
systems were developed and ready to be implemented, with adequate
training of personnel. (Health & Saf. Code, § 25574.)
The Office of Emergency Services was given the duties of: (a)
notifying counties adjacent to an Emergency Planning Zone of the
details of a nuclear powerplant emergency; (b) exercising ultimate
authority for the allocation of funds from the Nuclear Planning
Assessment Special Account to local jurisdictions for nuclear
powerplant emergency planning and response activities; (c) ensuring
a primary and backup communications capability with county
emergency operations centers in the Emergency Planning Zones; (d)
participating annually in exercises of the State's nuclear
emergency response plan to ensure that State personnel are
adequately trained to respond in the event of an actual emergency;
and (e) cooperating with local emergency response authorities and
utilities operating nuclear power facilities to ensure the adequacy
of their primary and backup communications systems. (Health & Saf.
Code, § 25582.)
4. 89-1001
reimbursed with federal funds, to be reimbursed from the Nuclear
Planning Assessment Special Account. As mentioned at the outset,
that Account is funded by utilities operating nuclear powerplants
having a generating capacity of 50 megawatts or more. But as also
mentioned, the Rancho Seco nuclear facility is no longer generating
electricity and SMUD will be taking steps to have it
decommissioned. Question therefore arises of whether, or for how
long, SMUD must continue to contribute its portion to the Nuclear
Planning Assessment Special Account under section 8610.5.
In answering that question our primary task is to
ascertain the intention of the Legislature so as to effectuate the
purpose of the law. (Cf., Sand v. Superior Court (1983) 34 Cal.3d
567, 570; Great Lake Properties, Inc v. City of El Segundo (1977)
19 Cal.3d 152, 153; Select Base Materials v. Board of Equalization
(1959) 51 Cal.2d 640, 645; Alford v. Pierno (1972) 27 Cal.App.3d
682, 688.) Thus, under circumstances of decommissioning, would the
Legislature have intended a utility to continue to pay into the
Nuclear Planning Assessment Special Account under section 8610.5,
and if so, for how long?
To ascertain that intention we turn first to the words of
the statute. (Cf., Sand v. Superior Court, supra, 34 Cal.3d 567,
570; Moyer v. Workmen's Compensation Appeals Board (1973) 10 Cal.3d
222, 230; Steilberg v. Lackner (1977) 69 Cal.App.3d 780, 785; Rich
v. State Board of Optometry (1965) 235 Cal.App.2d 591, 604.)
Section 8610.5 is lengthy and its present composition is an
accretion of additions made over the past decade. In quoting the
relevant portion of it here we have numbered the sentences to
facilitate referring to them in analyzing the section. Section
8610.5 currently provides in pertinent part as follows:
"[1]It is the intent of the Legislature that state
and local costs related to carrying out the provisions of
this section which are not reimbursed by federal funds
shall be borne by the utility [sic] with existing nuclear
powerplants having a generating capacity of 50 megawatts
or more. [2]The Public Utilities Commission shall
develop and transmit to the Office of Emergency Services
an equitable method of assessing the utilities operating
the powerplants for their reasonable pro rata share of
state agency costs. [3]Each local agency involved shall
submit a statement of its costs in such manner as the
Office of Emergency Services shall require. [4]Upon each
utility's notification by the Office of Emergency
Services, from time to time, of the amount of its share
of the actual or anticipated state and local agency
costs, the utility shall pay such amount to the
Controller for deposit in the Nuclear Planning Assessment
Special Account, which is hereby created in the General
Fund for use by the Controller, upon appropriation by the
5. 89-1001
Legislature, to carry out this section, and, upon
appropriation by the Legislature, to carry out the
purposes of Chapter 6.99 (commencing with Section 25572
of Division 20 of the Health and Safety Code. [5]The
Controller shall pay from this account the state and
local costs relative to carrying out the provisions of
this section and Chapter 6.99 (commencing with Section
25572) of Division 20 of the Health and Safety Code, upon
certification thereof by the Office of Emergency
Services. [6]Each utility operating a nuclear powerplant
shall, within one month of the effective date of this
section, pay to the Controller for deposit into the
Nuclear Planning Assessment Special Account the sum of
twenty-five thousand dollars ($25,000) for each nuclear
powerplant for the purpose of funding initial planning
costs. [7]Upon repeal of this section, any amounts
remaining in the special account shall be refunded pro
rata to the utilities contributing thereto.
[8]Commencing on the effective date of the amendment of
this section during the 1988 portion of the 1987-88
Regular Session of the Legislature, the total annual
reimbursement of state costs from the utilities operating
the nuclear powerplants within the state pursuant to this
section shall not exceed the lesser of the actual costs
or nine hundred thirty-seven thousand dollars ($937,000)
annually to be shared equally among the utilities.
[9]Commencing on January 1, 1989, the total annual
reimbursement of local costs from privately owned
utilities shall not exceed the lesser of the actual costs
or two hundred fifty thousand dollars ($250,000) per
reactor unit annually and from publicly owned utilities
shall not exceed the lesser of the actual costs or four
hundred fifty thousand dollars ($450,000) per reactor
unit annually. [10]Of the nine hundred thirty-seven
thousand dollars ($937,000) for state costs, three
hundred seventy-five thousand dollars ($375,000) are in
support of an annual interagency agreement between the
Office of Emergency Services and the State Department of
Health Services for activities of the department pursuant
to this section and Chapter 6.99 (commencing with Section
25572) of Division 20 of the Health and Safety Code,
three hundred thousand dollars ($300,000) are in support
of the Office of Emergency Services for activities
pursuant to this section and two hundred sixty-two
thousand dollars ($262,000) are in support of the Office
of Emergency Services for activities pursuant to Chapter
6.99 (commencing with Section 25572) of Division 20 of
the Health and Safety Code. [11]Of the two hundred fifty
thousand dollars ($250,000) per reactor unit annually for
local costs, paid by privately owned utilities, up to one
hundred fifty thousand dollars ($150,000) per reactor
6. 89-1001
unit are in support of activities pursuant to this
section and up to one hundred thousand dollars ($100,000)
per reactor unit are in support of local activities
pursuant to Chapter 6.99 (commencing with Section 25572)
of Division 20 of the Health and Safety Code. [12]The
amounts paid by privately owned utilities under this
section shall be allowed for ratemaking purposes by the
Public Utilities Commission. Publicly owned public
utilities may include amounts paid under this section in
their rates.
"The amounts specified in this section shall be
adjusted each fiscal year by the percentage increase in
the California Consumer Price Index for the previous
calendar year." (§ 8610.5; Stats. 1979, ch. 965, p.
3296, § 1 as amended by Stats. 1982, c. 864, p. 3215,
§ 1, eff. Sept. 10, 1982; Stats. 1986, c. 722, p. 2401,
§ 1; Stats. 1987, c. 450, p. ___, § 1, eff. Sept. 8,
1987; Stats. 1988, c. 1607, p. ___, § 1; emphases added.)
Needless to say, the section is complex and so before
examining the actual language to determine exactly which utilities
must make payments to the Nuclear Planning Assessment Special
Account to reimburse State and local agencies for their activities
in nuclear powerplant emergency planning and preparedness, it is
best that we provide a synopsis to better understand the mechanism
of the section.
The portion of the section we have quoted commences with
a clearly stated legislative intention that State and local costs
related to carrying out its provisions, not reimbursed with federal
funds, be borne by utilities "with existing nuclear powerplants
having a generating capacity of 50 megawatts or more". (§ 8610.5,
[1].) Local agencies submit their individual costs for emergency
preparedness to the Office of Emergency Services (id., [3]), while
the overall State costs are shared equally among "utilities
operating the nuclear powerplants within the state" (id., [8]).
The Office of Emergency Services notifies "each utility" of the
amount of its share of the actual or anticipated State and local
agency costs (id., [4]), and "the utility" must pay that amount to
the Controller for deposit into the Nuclear Planning Assessment
Special Account (ibid.). The Controller then pays the State and
local costs relative to carrying out the provisions of section
8610.5 as well as those of the Radiation Protection Act from that
Account. (Id., [5], [10], [11].)
Under the section's present direction, the total annual
reimbursement of State costs incurred in connection with nuclear
powerplant emergency preparedness, not reimbursed with federal
funds and capped at $935,000, is shared equally among all utilities
7. 89-1001
"operating nuclear powerplants" in California. 5 (Id., [8].) [Up
to $375,000 of that amount is used in support of the annual
interagency agreement between the Office of Emergency Services and
the State Department of Health Services for activities of the
Department under section 8610.5 and the Radiation Protection Act;
up to $300,000 is used for OES activities under section 8610.5, and
up to $262,000 is used for OES activities under the Radiation
Protection Act. (Id., [10].)] The total annual reimbursement of
local costs from "privately owned utilities" (not reimbursed with
federal funds) is the lesser of the actual costs or $250,000 "per
reactor unit." ( Id., [9].) [Up to $150,000 per reactor unit of
that amount is used in support of local activities pursuant to
section 8610.5 and up to $100,000 per reactor unit is used in
support of local activities pursuant to the Radiation Protection
Act. (id., [11].)] The total annual reimbursement of local costs
from "publicly owned utilities" (not reimbursed with federal funds)
is the lesser of the actual costs or $450,000 "per reactor unit."
(Id., [9].) [No specific allocation of that amount is made to cap
cost reimbursement for activities undertaken by local agencies
pursuant to section 8610.5 and activities undertaken pursuant to
the Radiation Protection Act.] The amounts paid by utilities under
the section can be passed on to the consumer in the utilities'
rates. (Id., [12].)
With the overall working of section 8610.5 thus in mind
we can turn to its actual language to discern the operative words
which determine which utilities must reimburse State and local
costs for emergency planning and preparedness associated with
nuclear powerplants.
Sentence #1 of the section (as quoted above) expresses
the Legislature's intention that the State and local costs incurred
in implementing its provisions (which now also include
implementation of the provisions of the Radiation Protection Act
(sent. #s 4, 5, 10, 11) should be borne by "the utility [sic,
utilities] with existing nuclear powerplants having a generating
capacity of 50 megawatts or more." We perceive this to be a
general expression of legislative intent to guide the
interpretation of the more specific provisions which follow.
5
Formerly State costs were "prorated among utilities in
proportion to the allocation of benefit to each plant", with the
Public Utilities Commission "develop[ing] and transmit[ting] to the
Office of Emergency Services an equitable method of assessing ...
their reasonable prorata share...." (§ 8610.5 as amended by Stats.
1982, ch. 864, § 1, p. 3216.) However, in 1987 section 8610.5 was
amended to provide that the State costs "be shared equally among
the utilities...." (Stats. 1987, ch. 450, p. , § 1.) We note
that the former rôle of the PUC is still mentioned in the section.
(§ 8610.5, [2].)
8. 89-1001
Sentence #4 is the main operative sentence that imposes
the requirement on utilities to reimburse those emergency
preparedness costs: "Upon each utility's notification by the
Office of Emergency Services, from time to time, of the amount of
its share of the actual or anticipated state and local agency
costs, the utility shall pay such amount to the Controller...."
The interpretative problem posed is what the word "utility" means
in the emphasized part of the quotation. Clearly it refers back to
the beginning of the sentence to "each utility's notification by
the [OES]" but that does not help define exactly which utilities in
California the OES is required to notify. We must look elsewhere
for the answer to that.
The legislative intent expressed in sentence #1 indicates
that it is only those utilities "with existing nuclear powerplants
having a generating capacity of 50 megawatts or more" that are
required to reimburse State and local costs under section 8610.5.
But, might any other provisions of the section suggest a further
qualification or limitation on the utilities which must make that
reimbursement? Examining the other provisions of section 8610.5,
we can find one - a utility must be "operating" such a plant.
Sentence #6 dates from the original enactment of the
section when it required "each powerplant operator" to pay $25,000
to the Controller within one month of the effective date of the
section [September 22, 1979] to fund initial emergency planning
under it. (Stats. 1979, ch. 965, § 1, supra.) The sentence was
amended in 1982 to require "each utility operating a nuclear
powerplant" to pay that amount. (Stats. 1982, ch. 864, § 1,
supra.) Since the requirement was imposed only to secure "seed
money" for initial planning under the section, the qualification
that only "utilit[ies] operating a nuclear powerplant" (or
"powerplant operator[s]") make those initial payments would not
literally apply to other payments that they make must under the
section. But we can think of no logical reason why the Legislature
would have had reimbursement for initial planning costs apply to a
different category of utilities (or "operators") than those who
would reimburse subsequent costs. It would thus appear that those
costs as well should come from utilities "operating a nuclear
powerplant", or "powerplant operator[s]".
Indeed, that qualification is expressed in sentence #8.
That sentence caps the reimbursement that utilities must make of
state agency costs under section 8610.5, and indicates that the
reimbursement is to come "from the utilities operating the nuclear
powerplants within the state." However, it should be pointed out
that sentence #9, which caps utilities' reimbursement of local
costs, designates the utilities which must make that reimbursement
only by the words "privately owned" and "publicly owned", and
mentions nothing about utilities "operating nuclear powerplants."
While it might thus be argued that the absence of the word
"operating" in sentence #9 was meant to signify that the
9. 89-1001
legislature also intended that local costs for emergency planning
were to be reimbursed by utilities which were not "operating"
nuclear powerplants as well as those which were, we reject the
argument. There is nothing else in the statute to suggest that the
Legislature wished to make a distinction between those utilities
which would have to reimburse State agency costs and those which
would have to reimburse local agency costs, and we can think of no
logical reason why one would have been made.
We therefore conclude that the Legislature intended to
have the requirement to contribute toward reimbursement of State
and local agency costs under section 8610.5 apply to all utilities
"with existing nuclear powerplants having a generating capacity of
50 megawatts or more" which were "operating" such plants in this
State.
SMUD is a publicly owned utility. As long as it is
"operating" an "existing nuclear powerplant with a generating
capacity of 50 megawatts or more", it is responsible under section
8610.5 for payment of an equal share with other utilities
"operating nuclear powerplants" to reimburse State agency costs
associated with implementing section 8610.5 and the Radiation
Protection Act, and an amount up to $450,000 to reimburse local
agency costs particularly associated with Rancho Seco.
Is Rancho Seco then, which is no longer producing
electricity, an "existing nuclear powerplant with a generating
capacity of 50 megawatts or more" and is SMUD now "operating a
nuclear powerplant" within the meaning of section 8610.5? And if
those answers are affirmative, will they change, and if so how,
with the decommissioning of the facility?
Usually a statute is interpreted according to the usual,
ordinary, and generally accepted meaning of the words used to frame
it. (Cf., People v. Craft (1986) 41 Cal.3d 554, 560; People v.
Castro (1985) 38 Cal.3d 301, 310; People v. Belleci (1979) 24
Cal.3d 879, 884; Palos Verdes Faculty Assn v. Palos Verdes
Peninsula Unified Sch. Dist. (1978) 21 Cal.3d 650, 658; Great Lakes
Properties Inc. v. City of El Segundo, supra, 19 Cal.3d 152, 155
156.) But the words must "be read in context, keeping mind the
nature and obvious purpose of the statute [citation], and the
statutory language applied must be given such interpretation as
will promote rather than defeat the objective and policy of the
law." ( Steilberg v. Lackner, supra, 69 Cal.App.3d 780, 785; see
also, Great Lakes Properties, Inc. v. City of El Segundo, supra at
155-156 [where the legislative history of the subject matter
imports a different meaning, literal language will not be
followed]; Alford v. Pierno, supra, 27 Cal.App.3d 682, 688 [the
purpose of a statute will not be sacrificed to a literal
construction].)
10. 89-1001
It is somewhat ambiguous from the literal wording of
section 8610.5 whether the section requires that a powerplant be
fully operational and actually producing electricity in order for
it to be considered an "existing nuclear powerplant with a capacity
of 50 megawatts or more" 6, or for the utility involved to be
considered one which is "operating a nuclear powerplant". But the
historical circumstances attending the enactment of the section
make it clear that such a condition was not intended for the
section to apply. (Cf., California Mfgrs. Assn. v. Public
Utilities Com. (1979) 24 Cal.3d 836, 844; Sand v. Superior Court,
supra, 34 Cal.3d 567, 570; People v. Ventura Refining Co. (1928)
204 Cal. 286, 291; Steilberg v. Lackner, supra, 69 Cal.App.3d 780,
785; Alford v. Pierno, supra, 27 Cal.App.3d 682, 688.)
When section 8610.5 was first enacted in 1979 the
Legislature expressed its intention that all State and local costs
related to carrying out its provisions, not reimbursed by federal
funds, should "be borne by the operators of the four existing
nuclear powerplants having a generating capacity of 50 megawatts or
more...." (Stats. 1979, ch. 956, § 1, supra; emphasis added.) At
the time, however, there were only three commercial nuclear reactor
units in California that had been completed and issued licenses to
operate (Humboldt Bay, San Onofre Unit #1, and Rancho Seco) and of
those three, only two (San Onofre Unit #1 and Rancho Seco) were
actually operating and producing electricity.7 (See Appendix B.)
Therefore, when the Legislature spoke of "the operators of the four
existing nuclear powerplants having a generating capacity of 50
megawatts or more" it must have had something other in mind than
utilities running fully operational nuclear facilities that were
actually producing electricity.
This perception is confirmed by the fact that in 1980,
the Legislature enacted a special statute, Health and Safety Code
section 25880.4, to exempt the nuclear facility at Humboldt Bay -
6
The word "existing" means having "actual or real being."
(Webster's Third New Intn'l. Dict. (1971 ed.) at p. 796.) However,
in section 8610.5 it is used to modify "nuclear powerplant" and not
"capacity". "Capacity" means an "ability to process, ... produce
..., or yield". ( Id. at p. 330.) The structure of the section
thus seems to indicate that the ability to produce electric power
need not be current in order for an existing nuclear powerplant to
come within its embrace.
7
Although the nuclear facility at Humboldt Bay had been issued
a provisional operating license in 1962 and a full term 40-year
license in 1969, it was shut down by order of the Nuclear
Regulatory Commission in 1976 for plant modifications to
accommodate seismic concerns (cf., Health & Saf. Code, § 25880.4)
and it never entered service again as a commercial producer of
electricity.
11. 89-1001
which had been shut down four years earlier and was no longer
producing electricity (cf., fn. 7, ante)-- from need for local
planning under section 8610.5.8 The fact that the Legislature felt
that a special statute was necessary to exempt the facility from
those planning requirements indicates that it thought that Humboldt
Bay, though not producing electricity, would nonetheless be
considered to be an "existing nuclear powerplant with a generating
capacity of 50 megawatts or more" within the purview of the section
and thus occasion a need for local emergency powerplant planning
under it. (Cf., Safer v. Superior Court (1975) 15 Cal.3d 230, 236,
238; Santa Fe Transp. v. State Board of Equal. (1959) 51 Cal.2d
531, 538-539; Board of Trustees v. Judge (1975) 50 Cal.App.3d 920,
927.)
What then did the Legislature have in mind when it spoke
of "four existing nuclear powerplants"? We believe it thought of
the four locales in California which were to soon host nuclear
facilities and which, because of them, would require planning for
emergency preparedness. Specifically, although there were only two
nuclear facilities actually producing electricity in California in
1979, there were four additional units well into construction, each
of which would eventually produce 50 megawatts or more of
electricity --San Onofre Units 2 & 3 and Diablo Canyon Units 1 & 2.
(Cf., Appendix B.) Thus, when the Legislature enacted section
8610.5 in 1979, there were four existing sites where nuclear power
would be employed for the commercial production of electricity and
where State and local emergency preparedness would be necessary:
Humboldt Bay, Rancho Seco, Diablo Canyon and San Onofre. When the
Legislature spoke of "the four existing nuclear powerplants having
a generating capacity of 50 megawatts or more" we believe it had
those four sites in mind which would require the type of emergency
planning and preparedness that section 8610.5 speaks to.9
8
Section 25880.4 provided: " If the Humboldt Bay Nuclear
Generating Station is not in operation on the effective date of
this section [September 26, 1980], the local emergency plan for it
shall not be required to meet the revised emergency response plan
requirements of Section 8610.5 of the Government Code until the
Nuclear Regulatory Commission determines that the powerplant meets
[NRC] seismic safety criteria, or until the [NRC] issues an order
rescinding the restrictions imposed on the [facility] in its order
of May 21, 1976. [¶]In the event the [NRC] determines that the ...
Station meets [NRC] seismic safety standards, or issues an order
rescinding the restrictions,... a ... county emergency plan meeting
the requirements of Section 8610.5 ... shall be submitted to the
Office of Emergency Services...." (Emphasis added.)
9
The distinction between a "nuclear powerplant" and an
individual "reactor unit" is seen in section 8610.5 as it appears
today. Sentence #1 of the section still speaks of "nuclear
powerplants having a generating capacity of 50 megawatts or more",
12. 89-1001
But again, only two reactor units were actually producing
electricity at those four sites. We therefore do not read the
expression of legislative intent for State and local costs related
to carrying out the provisions of section 8610.5 to be borne by
utilities with "existing nuclear powerplants having a generating
capacity of 50 megawatts or more", to look to whether a particular
facility is actually producing electricity.10 A utility "operating"
a nuclear powerplant might still be liable for contribution under
the section even though its facility is not fully operational and
actually producing electricity.
but when sentence #9 comes to describe the reimbursement of local
costs from private and public utilities, it does so by "reactor
unit." Ordinarily "when different language is used in ...
different parts of a statute it is presumed the legislature
intended a different meaning [for them]...." ( People v. Moore
(1986) 178 Cal.App.3d 898, 903; see also, In re Karpf (1970) 10
Cal.App.3d 355, 365; Charles S. v. Board of Education (1971) 20
Cal.App.3d 83, 95; 64 Ops.Cal.Atty.Gen. 455, 458 (1981).)
10
In 1982 section 8610.5 was amended to have the designated
bearers of costs changed to read as it does today: costs are to be
borne by "the utility [sic, utilities] with existing nuclear
powerplants having a generating capacity of 50 megawatts or
more...." (Stats. 1982, ch. 864, § 1, supra.) We see no
significance in the change that was made from "operators" to
"utilities". Indeed, the Legislative Counsel's Digest of the Bill
which made the amendment indicates that the change was to "clarify
existing law." (6 Stats. 1982, Sum.Dig. [SB 1473], p. 285.) Then,
while the former wording "four existing nuclear powerplants with a
generating capacity of 50 megawatts or more" may have been amended
to delete the word "four", the phrase still spoke of "nuclear
powerplants" and there was no indication that the notion of what
was to be considered a "nuclear powerplant" was meant to change.
To the contrary, the aforementioned Legislative Counsel's Digest
speaks of "4 nuclear powerplants within the state" (id. at p. 284)
while at the time still only two nuclear facilities were operating
to produce electricity (cf., Appendix B). Since "it is reasonable
to presume that the Legislature amended section [8610.5] with the
... meaning expressed in the Legislative Counsel's digest
[Citations]" (People v. Martinez (1987) 194 Cal.App.3d 15, 22) it
would appear that a "nuclear powerplant" would still be a site
where emergency preparedness would be necessary because of the
presence of a nuclear facility, whether or not it was actually
producing electricity. In this vein it is observed that it is not
necessary for a nuclear powerplant to be producing electricity in
order for emergency planning to be necessary in connection with it.
Indeed, the rules of the Nuclear Regulatory Commission contemplate
some degree of onsite and offsite emergency planning even at the
construction stage of a facility. (10 CFR § 50.34(a)(10) & Pt. 50,
App. E, II (The Preliminary Safety Analysis Report).)
13. 89-1001
What then does determine when a utility is obligated to
contribute to cost reimbursement under section 8610.5? The answer,
we believe, is found in the purpose for which the section was
enacted: to secure reimbursement for the costs of State and local
nuclear powerplant emergency planning and preparedness from those
utilities operating facilities making such State and local efforts
necessary. And so, while it may belabor the obvious, we will
briefly discuss why State and local nuclear emergency planning and
preparedness is occasioned by a nuclear facility.
The Atomic Energy Act of 1954 (Pub.L. 83-703), as
amended, vests the Nuclear Regulatory Commission ["NRC"] with
authority to regulate the construction and operation of commercial
nuclear powerplants in the United States through a system of
licensing "subject to such conditions as the Commission may by rule
or regulation establish...." (42 U.S.C.A. § 2133(a);Power Reactor
Development Co v. International Union of Electrical Radio Machine
Workers (1961) 367 U.S. 396, 404.)11,12 Under the Act and the rules
and regulations of the Commission, no person may construct or
operate a nuclear power facility (i.e., a "utilization facility for
industrial or commercial purposes") without a license from the
Commission to do so. (42 U.S.C.A. §§ 2131, 2132, 2133, 2136, 2137;
10 CFR, Part 50, §§ 50.10, 50.22, 50.23, 50.50.)13
An operating license may not be issued unless the NRC can
make a favorable finding that the integration of onsite and offsite
emergency planning taken together provides "reasonable assurance
that adequate protective measures can and will be taken in the
event of a radiological emergency." (10 CFR § 50.47(a)(1); cf.,
Emergency Planning, 45 Fed.Reg. 55402, 55403 (Aug. 19, 1980).)
This involves an evaluation of the emergency response plans not
only of the licensee, but also of State and local agencies that may
11
The Atomic Energy Act of 1954, as amended, appears in Title
42 of West's United States Code Annotated, i.e., 42 United States
Code Annotated, section 2011 et seq. References to the Act in this
opinion will be to that reference.
12
The licensing and related regulatory oversight functions for
commercial nuclear powered plants were originally vested in the
Atomic Energy Commission. In 1974 Congress enacted the Energy
Reorganization Act (Pub.L. 93-438; 42 U.S.C.A. § 5801 et seq.)
which abolished that Commission and transferred all the licensing
and related regulatory functions assigned to it under the Atomic
Energy Act of 1954 to a newly created Nuclear Regulatory
Commission. (42 U.S.C. § 5841.) The Energy Reorganization Act
became effective on January 15, 1975. (Ex.Order 11834.)
13
The rules and regulations of the Nuclear Regulatory
Commission ["NRC" or "Commission"] are contained in Title 10 of the
Code of Federal Regulations.
14. 89-1001
be involved in dealing with an emergency at the facility. (10 CFR
§§ 50.47(a),(b); 50.54(s)(1),(2); & Pt. 50, App. E.) Thus, the NRC
bases its determination of whether to issue an operating license
for a nuclear powerplant in part on whether State and local agency
plans for dealing with a radiological emergency at the facility are
adequate and whether they can be implemented. (10 CFR
§ 50.47(a)(2); cf. § 50.54(s)(3).)
Onsite and offsite emergency response plans, including
those of the affected State(s) and local agencies, must meet
certain standards and criteria. (10 CFR §§ 50.47(b),
50.54(q),(s),(u), & Pt. 50, App. E; see also 44 CFR § 350.5 [FEMA];
Emergency Planning, supra, 45 Fed.Reg. 55402, 55403-55406.)
Whether specifically stated in a license or not, the need to meet
those standards is deemed a continuing condition of every operating
license (10 CFR § 50.54) and must be maintained throughout its term
(id., subsec. (q)).
Two federal agencies assess the adequacy of State and
local emergency preparedness, the Nuclear Regulatory Commission and
the Federal Emergency Management Agency ["FEMA"]. On January 14,
1980, they signed a Memorandum of Understanding describing the
responsibilities of each in radiological emergency preparedness.
(See 45 Fed.Reg. 5847 (Jan. 24, 1980).) Under the Agreement, FEMA
has responsibility for assessing off-site emergency planning,
including assessing and determining whether State and local
emergency plans are adequate and capable of implementation. FEMA
also assumes responsibility for emergency preparedness training of
State and local officials. (45 Fed.Reg. 5847, 5848-5849, supra;
see also, 44 CFR, Part 350.) The NRC, on the other hand, has
primary responsibility for assessing the adequacy of the emergency
preparedness of its licensees. (45 Fed.Reg., supra at pp. 5848
5849.) However, in a licensing proceeding, such as one to issue or
continue an operating license, the NRC makes the final
determination as to the overall state of emergency preparedness,
i.e., the integrated coordination of the licensee's emergency
preparedness and that of the State and local governments concerned.
(Ibid.; cf., 10 CFR §§ 50.47(a)(1),(2), 50.54(s)(3); see also
Emergency Planning, supra, 45 Fed.Reg. at pp. 55403, 55406.)
The NRC and FEMA have jointly issued a document entitled
"Criteria for Preparation and Evaluation of Radiological Emergency
Response Plans and Preparedness in Support of Nuclear Power Plants"
(NUREG-0654/FEMA-REP-1) to provide guidance to licensees and to
State and local governments in radiological emergency preparedness.
(See, Emergency Planning, supra, 45 Fed.Reg. at p. 55403; see also,
45 Fed.Reg. 42342 (June 24, 1980).) The document contains a series
of specific criteria for preparing and evaluating the planning and
preparedness activities of State and local governments, as well as
those of the licensees of the NRC, and it sets forth the standards
and criteria that will be used in determining the adequacy of their
15. 89-1001
emergency response plans. (Ibid.; see also, 44 CFR § 350.5; 10 CFR
§ 50.47(b).)
Among the joint criteria and standards that are set forth
which involve State and local agencies in emergency planning are
the following: the assignment of primary responsibilities for
emergency response by State and local organizations within the
Emergency Planning Zones14; the development of appropriate
protective actions to be taken in the Emergency Planning Zones; the
coordination of various onsite response activities and offsite
support and response activities, including those of governmental
agencies; and the conduct of periodic exercises and drills with
"full participation" by appropriate State and local agencies15. (10
CFR § 50.47(b) & Pt. 50, App. E, § IV; 44 CFR § 350.5.)
From this overview we see (i) how the federal statutory
scheme governing the licensing of nuclear powerplants contemplates
the existence of State and local emergency preparedness as part of
providing an effective response to a potential incident at a
nuclear powerplant, and (ii) how that preparedness in turn involves
the active participation by State and local agencies in emergency
planning and training so they will be able to make that effective
response.
14
The Emergency Planning Zone (EPZ) concept is at the heart of
federal emergency planning policy. (See, Emergency Planning, 45
Fed.Reg. 55402, 55406 (Aug. 19, 1980.) Two EPZ's are established
around each light water reactor --a plume/airborne/inhalation
exposure pathway with a radius of about 10 miles, and an ingestion
pathway (for contaminated food and water) with a radius of about 50
miles. (10 CFR §§ 50.47(c)(2), 50.54(s)(1),(2);id., Part 50, App.
E, § I, fn. 1; 44 CFR § 350.7(b); cf., see also, Emergency
Planning, supra, 45 Fed.Reg. at p. 55406.) Of course, "the exact
size and configuration the EPZ's for a particular nuclear power
reactor is determined in relation to local emergency response needs
and capabilities as they are affected by such [site specific]
conditions as demography, topography, land characteristics, access
routes, and jurisdictional boundaries." (10 CFR, §§ 50.47(c)(2),
50.54(s)(1); see also Emergency Planning, supra.)
15
"Full participation" when used in conjunction with emergency
preparedness exercises for a particular site is defined to mean
"appropriate offsite local and State authorities and licensee
personnel physically and actively take part in testing their
integrated capability to adequately assess and respond to an
accident at a commercial nuclear power plant." (10 CFR, Pt. 50,
App. E, § IV.F, fn. 4.) It includes "testing the major observable
portions of the onsite and offsite emergency plans and mobilization
of State, local and licensee personnel and other resources in
sufficient numbers to verify the capability to respond to the
accident scenario." (Ibid.)
16. 89-1001
The California Legislature has recognized the need to
maintain such emergency preparedness in section 8610.5 and the
Radiation Protection Act. We have seen how the former was prompted
by the incident at the Three Mile Island facility and how enactment
of the latter followed upon the incident at Chernobyl. After each
incident the Legislature held hearings on the ability of State and
local agencies to respond to an emergency at a nuclear powerplant,
and then enacted the respective legislation to ensure the adequacy
of that response. Thus, in both pieces of legislation the
Legislature has required State and local agencies to actively
participate in planning, training, and general nuclear powerplant
emergency preparedness. And it has expressed its intention that
the costs associated with that activity be borne by the utilities
operating the nuclear facilities. (§ 8610.5, [1], [4], [5], [10],
[11], supra.)
And so we return to the question of the effect the
decommissioning of Rancho Seco will have on SMUD's obligation to
reimburse its share of those costs under section 8610.5 and how the
decommissioning will in turn affect the obligations of other
utilities with nuclear powerplants in the State.
As we have interpreted section 8610.5, the obligation of
a utility to contribute toward the reimbursement of State and local
agency costs for nuclear powerplant emergency planning and
preparedness under section 8610.5, was never meant to depend on
whether its nuclear facility was actually producing electricity.
Under the section, reimbursement is required whether or not a
powerplant is actually producing electricity, as long as State and
local agency emergency preparedness efforts are necessary because
of it.
SMUD's current operating license for Rancho Seco
continues to be predicated upon an assurance that an adequate and
capable response can be made by State and local agencies to a
foreseeable radiological emergency at the facility (cf., 10 CFR
§§ 50.47(a),(b), 50.54(s)(3), & Pt. 50, App. E) and that
requirement would ordinarily persist throughout the full term of
the operating license for the facility. (Cf., id., § 50.54(q).)
Thus, although Rancho Seco is no longer producing electricity, the
facility still occasions the need for state and local emergency
planning and preparedness. Under our interpretation of section
8610.5, as long as that is the case, SMUD will remain liable to
contribute its appropriate share to reimburse the cost of those
efforts.
However, as the decommissioning of Rancho Seco progresses
there will come a time when current emergency preparedness for the
facility will no longer be necessary because the radiological
hazard presented by the presence of nuclear material will be
significantly reduced or removed. Thus, at some point in the
decommissioning process SMUD will undoubtedly seek an amendment to
17. 89-1001
its operating license to modify or remove the need for continued
State and local preparedness in connection with the plant, and if
no safety question is presented, the NRC will grant SMUD's
application. (Cf., 10 CFR §§ 50.91, 50.92; see also, NRC,
Statement of Consideration - General Requirements for
Decommissioning Nuclear Facilities, 53 Fed.Reg. 24018, 24019, 24025
(June 27, 1988).)
At this venture it is impossible to say with any
certainty when the need for State and local emergency planning and
preparedness in connection with Rancho Seco will no longer be
necessary. A nuclear powerplant is not simply "unplugged" and
decommissioning is a lengthy and variable process. It is defined
as "remov[ing] ... a facility safely from service and reduc[ing]
residual radioactivity to a level that permits release of the
property for unrestricted use and termination of license." (10 CFR
§ 50.2.)16 The ultimate aim is that the facility site can become
available for unrestricted use for any public or private non
nuclear purpose. (Statement of Consideration, supra, 53 Fed.Reg.
at pp. 24019, 24020.)
Decommissioning applies to the site, buildings and
contents, and equipment associated with a nuclear facility that are
or will become contaminated during the time the facility is
licensed. (Id., at p. 24021.) Decommissioning does not apply to
the removal and disposal of spent fuel because that is considered
to be an "operational" activity. (Id. at 24019.) As mentioned at
the very outset, the spent fuel from Rancho Seco has not been
removed from the site.
Decommissioning activities are initiated when a licensee
decides to terminate licensed activities. (10 CFR § 50.82(a).)
This must be done within two years following the permanent
cessation of operations. (Ibid.) The application for termination
must be accompanied (or preceded) by a proposed decommissioning
plan that sets forth the choice of one of three alternatives for
decommissioning the facility, together with a description of the
activities that will be involved and the controls and procedures
that will protect the public health and safety. ( id., subsec.
(a),(b).)
16
"`Unrestricted use' refers to the fact that from a
radiological standpoint no hazards exist at the site, the license
can be terminated and the site can be considered an unrestricted
area. This definition is consistent with the definition of an
unrestricted area [given] in 10 CFR 20.3 as being `any area access
to which is not controlled by the licensee for purposes of
protection of individuals from exposure to radiation and
radioactive materials and any area used for residential quarters.'"
(Statement of Consideration, supra, 53 Fed.Reg. at p. 24020.)
18. 89-1001
The alternatives for decommissioning are called DECON,
SAFSTOR, and ENTOMB. All three provide ways in which residual
radioactivity at a facility can be reduced to a level to permit
release of the property for unrestricted use. They either involve
a prompt dismantling of the facility or a storage period during
which radioactive decay can occur prior to dismantlement.17 (See
Statement of Consideration, supra, 53 Fed.Reg. at p. 24020.)
Decommissioning can be a lengthy process. As mentioned,
it is initiated when an application to terminate a license is filed
with the NRC, but that may be many years before a utility's
operating license is actually terminated. (Id. at p. 24024.) The
length of time will certainly depend upon the decommissioning
alternative chosen. A reasonable period for DECON is 5 to 10
years; SAFSTOR can take from 30 to 50 years; and ENTOMB may take up
to 100 years.18 (See Statement of Consideration, supra, 53 Fed.Reg.
at p. 24023; but see, 10 CFR § 50.82(b)(1)(i),(iii) [60 year
maximum unless necessary to protect the public health and safety].)
The DECON and SAFSTOR alternatives are "reasonable options for
decommissioning [a] light water power reactor[]", such as Rancho
Seco. (Ibid.)19 Each method has its advantages and disadvantages.
17
"DECON is the alternative in which the equipment, structures,
and portions of a facility and site containing radioactive
contaminants are removed or decontaminated to a level that permits
the property to be released for unrestricted use shortly after
cessation of operations." (Statement of Consideration, supra, 53
Fed.Reg. at p. 24022.) "SAFSTOR is the alternative in which the
nuclear facility is placed and maintained in a condition that
allows the nuclear facility to be safely stored and subsequently
decontaminated (deferred contamination) to levels that permit
release for unrestricted use." (Ibid.) ENTOMB is the alternative
"in which radioactive contaminants are encased in a structurally
long-lived material, such as concrete; the entombed structure is
appropriately maintained and continued surveillance is carried out
until the radioactivity decays to a level permitting unrestricted
release of the property." (Id. at p. 24023.)
18
Decommissioning of the facility at Humboldt Bay commenced in
1984/86 and the decommissioning process is expected to be completed
in the year 2015. (See Statement of Consideration, supra, 53
Fed.Reg. at p. 24028.) The facility is in the SAFSTOR mode.
However, it should be noted that since permanent operations at that
reactor ceased before July 27, 1988, the current decommissioning
rules of the NRC do not apply. (10 CFR § 50.82(a); see also,
Statement of Consideration, supra, 53 Fed.Reg. at p. 24027.)
19
The longer ENTOMB alternative would be more appropriate for
"smaller reactor facilities, reactors which do not run to the end
of their lifetimes, or other situations where long-lived isotopes
do not build up to significant levels, or where there are other
19. 89-1001
For example, DECON releases the site for unrestricted use in a much
shorter time period than SAFSTOR, but the latter reduces
occupational exposures and waste volumes. (Ibid.)
The NRC will terminate a license after decommissioning
has been completed, if it determines that it has been adequately
performed in accordance with the decommissioning plan and the
terminal radiation survey demonstrates that the facility and site
are suitable for release for unrestricted use. (10 CFR
§ 50.82(f).) During the decommissioning process, however, the
licensee still has the responsibility to protect the public health
and safety, and any change from the original operating license
requires Commission approval. (See Statement of Consideration ,
supra, 53 Fed.Reg. at p. 24024.)
As mentioned, at some point during the decommissioning of
Rancho Seco, when the radiological hazard which now occasions the
need for emergency preparedness no longer exists, SMUD will seek
Commission approval to remove (or modify) the requirement for that
preparedness to continue as a condition of its operating license.
If it is then determined that State and local agency emergency
planning and preparedness is no longer necessary in connection with
the facility to assure the public health and safety, the NRC will
grant SMUD's application.
Again, it is impossible to say at this time when that
might be. SMUD has not even filed an application with the
Commission to terminate its operating license to start the
decommissioning process, and it has not as yet set forth a
decommissioning plan for the facility. Thus it is not even known
which of the alternative decommissioning plans SMUD will chose to
follow. But whatever path is chosen, and whenever it is
undertaken, it will be the Nuclear Regulatory Commission, and not
the Sacramento Municipal Utilities District, that will make the
decision on the need for continued State and local emergency
planning and preparedness in connection with Rancho Seco.20
site specific factors affecting the safe decommissioning of the
facility, as for example, presence of other nuclear facilities at
the site for extended periods." (See Statement of Consideration,
supra, 53 Fed.Reg. at p. 24023.)
20
It should be noted that under the Atomic Energy Act the
federal government has preempted the regulation of the construction
and operation of commercial nuclear power plants insofar as the
aspect of radiological safety is concerned, and the NRC
determination of radiological hazards preempts further state
regulation. (Cf., 42 U.S.C.A. § 2021(k);Northern States Power Co.
v. Minnesota (8th Cir. 1971) 447 F.2d 1143, 1148, 1149-1150, 1154,
aff'd., 405 U.S. 1035 [State of Minnesota may not impose a more
stringent regulation of radioactive effluents to the environment
20. 89-1001
We are constrained to interpret section 8610.5 in light
of its manifest purpose. (Cf., Great Lake Properties, Inc v. City
of El Segundo, supra, 19 Cal.3d 152, 153; People v. Shirokow (1980)
26 Cal.3d 301, 306-307; Moyer v. Workmen's Compensation Appeals
Board, supra, 10 Cal.3d 222, 230; Select Base Materials v. Board of
Equalization, supra, 51 Cal.2d 640, 645.) That we have seen was to
secure reimbursement of State and local costs for nuclear
powerplant emergency preparedness, that were reimbursed by federal
funds, from the operators of those facilities which occasion the
need for that preparedness. Accordingly, we conclude that as long
as State and local agency emergency preparedness continues to be
required in connection with the Rancho Seco nuclear facility, the
Sacramento Municipal Utility District will be liable for
reimbursement of costs under section 8610.5. Conversely, when the
NRC makes a decision that the State and local efforts to maintain
emergency preparedness for Rancho Seco are no longer needed, SMUD
will be relieved of its obligation to reimburse costs under the
section.
As a corollary, we were asked about the effect the
decommissioning of Rancho Seco will have on the contributions other
utilities with nuclear powerplants make to reimburse state and
local costs under section 8610.5. Under the present terms of the
section (cf., fn. 5, ante), the total annual reimbursement of State
agencies' costs for emergency preparedness (not reimbursed with
federal funds, and capped at $937,000) is shared equally by "the
utilities operating the nuclear powerplants within the State"
(§ 8610.5, [8]), and those utilities are also responsible for
reimbursing the preparedness costs of local agencies (not
reimbursed with federal funds) in an amount equal to the lesser of
either the actual annual costs or, for privately owned utilities
$250,000 "per reactor unit annually", and for publicly owned
utilities, $450,000 "per reactor unit annually" (id., [9]).
Ever since section 8610.5 was adopted, it has
distinguished between the reimbursement of State agency costs and
the reimbursement of local agency costs for emergency preparedness
activities. Thus, the section originally provided that State
agency costs (capped at $2,000,000) were to be prorated among the
operators of the powerplants upon an equitable method of assessment
developed by the Public Utilities Commission and transmitted to
OES. (§ 8610.5 as enacted by Stats. 1979, ch. 956, pp. 3297, 3298,
§ 1.) Local agency costs, on the other hand, were to be reimbursed
on an individual basis by the operator of each powerplant that
occasioned them. (Ibid. ["local agencies shall be reimbursed for
than that permitted by NRC]; see also, Pac. Legal Found. v. State
Energy Resources, etc. (9th Cir. 1981) 659 F.2d 903, 921, cert.
den. 457 U.S. 1133; Northern Cal. Assn. v. Public Util. Com.
(1964) 61 Cal.2d 126, 133; Carstens v. California Coastal Com.
(1986) 182 Cal.App.3d 277, 281, fn. 2.)
21. 89-1001
their costs incurred in preparing or updating their plans for the
affected area surrounding such powerplants by the operator of each
such powerplant."].) In 1982 a limit was put on the reimbursement
of local costs at "the lesser of the actual costs or ... $100,000
per reactor unit annually...." (Stats. 1982, ch. 864, p. 3216,
§ 1.) Although the limit has changed, this is similar to the
language which appears in section 8610.5 today. (§ 8610.5, [9].)
We see it as a continuing indication that the reimbursement of
local agency preparedness costs is be particularized on a local
basis.
We have interpreted section 8610.5 as imposing the
obligation to reimburse State and local agency costs for emergency
planning and preparedness on those utilities whose nuclear
facilities make those efforts necessary. When such efforts are no
longer necessary for Rancho Seco and SMUD is relieved of its
obligation to reimburse costs under the section, the new State
costs for emergency preparedness, now no longer including
preparedness activities in connection with Rancho Seco, will become
equally shared by the remaining two private utilities operating
nuclear powerplants having a capacity of 50 megawatts or more in
this State. (§ 8610.5, [8]; cf., Appendix B.) Those utilities
will also continue to be responsible for reimbursing the local cost
of emergency preparedness at their individual facilities, as they
are at present. (§ 8610.5, [9].)
***
APPENDIX A
Government Code Section 8610.5
"The Office of Emergency Services, in consultation with the
State Department of Health Services and affected counties, shall
investigate the consequences of a serious nuclear powerplant
accident for each of the four nuclear powerplants in California
with a generating capacity of 50 megawatts or more. This study, to
be completed within six months of the effective date of this
section, shall include the preparation of specific site maps
showing the areas likely to be affected by such an accident. These
maps shall delineate Emergency Planning Zones, which shall reflect
inhalation, ingestion, and other radiation pathways. [¶] A similar
study shall be made by the office for any subsequent nuclear
powerplant with a generating capacity of 50 megawatts or more
proposed for certification in California.
"The Office of Emergency Services shall revise its Nuclear
Power Plant Emergency Response Plan to reflect the information
provided in the study. The Office of Emergency Services shall
assist local authorities in preparing or upgrading their emergency
response plans to reflect its new planning guidelines. The state
22. 89-1001
plan shall be updated within six months after the study has been
made. Local plans shall be updated and approved by the Office of
Emergency Services in accordance with the following: (1) an
initial draft plan shall be submitted to the office within six
months after the study has been made, and (2) a final plan shall be
completed, reviewed, and approved within 18 months after the
effective date of this section. Neither the state plan nor any
local plan shall become effective or be implemented until approved
by the Office of Emergency Services of this state or the Federal
Emergency Management Agency. [¶] The current State Nuclear Power
Plant Emergency Response Plan shall continue in full force and
effect unless and until revised pursuant to this section. Local
plans shall remain in full force and effect unless and until
revised pursuant to this section.
"It is the intent of the Legislature that state and local
costs related to carrying out the provisions of this section which
are not reimbursed by federal funds shall be borne by the utility
with existing nuclear powerplants having a generating capacity of
50 megawatts or more. The Public Utilities Commission shall
develop and transmit to the Office of Emergency Services an
equitable method of assessing the utilities operating the
powerplants for their reasonable pro rata share of state agency
costs. Each local agency involved shall submit a statement of its
costs in such manner as the Office of Emergency Services shall
require. Upon each utility's notification by the Office of
Emergency Services, from time to time, of the amount of its share
of the actual or anticipated state and local agency costs, the
utility shall pay such pay such amount to the Controller for
deposit in the Nuclear Planning Assessment Special Account, which
is hereby created in the General Fund for use by the Controller,
upon appropriation by the Legislature, to carry out this section,
and, upon appropriation by the Legislature, to carry out the
purposes of Chapter 6.99 (commencing with Section 25572 of Division
20 of the Health and Safety Code. The Controller shall pay from
this account the state and local costs relative to carrying out the
provisions of this section and Chapter 6.99 (commencing with
Section 25572) of Division 20 of the Health and Safety Code, upon
certification thereof by the Office of Emergency Services. Each
utility operating a nuclear powerplant shall, within one month of
the effective date of this section, pay to the Controller for
deposit into the Nuclear Planning Assessment Special Account the
sum of twenty-five thousand dollars ($25,000) for each nuclear
powerplant for the purpose of funding initial planning costs. Upon
repeal of this section, any amounts remaining in the special
account shall be refunded pro rata to the utilities contributing
thereto. Commencing on the effective date of the amendment of this
section during the 1988 portion of the 1987-88 Regular Session of
the Legislature, the total annual reimbursement of state costs from
the utilities operating the nuclear powerplants within the state
pursuant to this section shall not exceed the lesser of the actual
costs or nine hundred thirty-seven thousand dollars ($937,000)
23. 89-1001
annually to be shared equally among the utilities. Commencing on
January 1, 1989, the total annual reimbursement of local costs from
privately owned utilities shall not exceed the lesser of the actual
costs or two hundred fifty thousand dollars ($250,000) per reactor
unit annually and from publicly owned utilities shall not exceed
the lesser of the actual costs or four hundred fifty thousand
dollars ($450,000) per reactor unit annually. Of the nine hundred
thirty-seven thousand dollars ($937,000) for state costs, three
hundred seventy-five thousand dollars ($375,000) are in support of
an annual interagency agreement between the Office of Emergency
Services and the State Department of Health Services for activities
of the department pursuant to this section and Chapter 6.99
(commencing with Section 25572) of Division 20 of the Health and
Safety Code, three hundred thousand dollars ($300,000) are in
support of the Office of Emergency Services for activities pursuant
to this section and two hundred sixty-two thousand dollars
($262,000) are in support of the Office of Emergency Services for
activities pursuant to Chapter 6.99 (commencing with Section 25572)
of Division 20 of the Health and Safety Code. Of the two hundred
fifty thousand dollars ($250,000) per reactor unit annually for
local costs, paid by privately owned utilities, up to one hundred
fifty thousand dollars ($150,000) per reactor unit are in support
of activities pursuant to this section and up to one hundred
thousand dollars ($100,000) per reactor unit are in support of
local activities pursuant to Chapter 6.99 (commencing with Section
25572) of Division 20 of the Health and Safety Code. The amounts
paid by privately owned utilities under this section shall be
allowed for ratemaking purposes by the Public Utilities Commission.
Publicly owned public utilities may include amounts paid under this
section in their rates. [¶] The amounts specified in this section
shall be adjusted each fiscal year by the percentage increase in
the California Consumer Price Index for the previous calendar year.
"This section shall remain in effect only until January 1,
1994, and as of that date is repealed, unless a later enacted
statute which is chaptered on or before January 1, 1994, deletes or
extends that date." (§ 8610.5; Stats. 1979, ch. 965, p. 3296, § 1
as amended by Stats. 1982, ch. 864, p. 3215, § 1, eff. Sept. 10,
1982; Stats. 1986, ch. 722, p. 2401, § 1; Stats. 1987, ch. 450, p.
___, § 1, eff. Sept. 8, 1987; Stats. 1988, ch. 1607, p. ___, § 1;
emphases added.)
24. 89-1001
================================================
APPENDIX B
Commercial Nuclear Powerplants in California
Site & Operating
Reactor Units License Issued Utility Involved
Humbolt Bay Aug.`62-pvnsl Pacific Gas & Electric
.
1969 -40 year
Rancho Seco August 1974 Sacto.Mun.Util.Dist.-SMUD
San Onofre -- So. California Edison
Unit #1 March 1967
Unit #2 August 1982
Unit #3 September 1983
Diablo Canyon -- Pacific Gas & Electric
Unit #1 April/Nov. 1984
Unit #2 August 1985
*****
25. 89-1001