Untitled California Attorney General 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