______________________________________ 

________________________________________________________________________________ 

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).)
 

10In 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
 

11The 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.
 

12The 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.)
 

13The 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. 


14The 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 nonnuclear 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.)
 

18Decommissioning 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.)
 

19The 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.)
 

20It 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
 

*****
 

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