Akins v. Sacramento Mun. Utility Dist.

• Decision Date: 02 June 1992
• Docket Number: No. C009871,C009871
• Citation: 12 Cal.App.4th 1026,8 Cal.Rptr.2d 785
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 12 Cal.App.4th 1026, 18 Cal.App.4th 208, 6 Cal.App.4th 1605 12 Cal.App.4th 1026, 18 Cal.App.4th 208, 6 Cal.App.4th 1605, Nuclear Reg. Rep. P 20,559 Michael AKINS et al., Plaintiffs and Appellants, v. SACRAMENTO MUNICIPAL UTILITY DISTRICT, Defendant and Respondent.

Page 785

8 Cal.Rptr.2d 785

Previously published at 12 Cal.App.4th 1026, 18 Cal.App.4th 208, 6 Cal.App.4th 1605

12 Cal.App.4th 1026, 18 Cal.App.4th 208, 6 Cal.App.4th 1605,

Nuclear Reg. Rep. P 20,559

Michael AKINS et al., Plaintiffs and Appellants, v. SACRAMENTO MUNICIPAL UTILITY DISTRICT, Defendant and Respondent.

No. C009871.

Court of Appeal, Third District, California.

June 2, 1992.

Rehearing Denied June 26, 1992.

Review Granted Aug. 20, 1992.

Review Dismissed and Cause Remanded to the Court of Appeal Feb. 24, 1994.

Friedman, Collard & Poswall, Morton L. Friedman, Donahue and Callaham and Stephen J. Mackey, Sacramento, for plaintiffs and appellants.

Crosby, Heafey, Roach & May, John A. Reding, Ned N. Isokawa, James C. Martin, F. Ronald Laupheimer and Joseph P. Mascovich, Oakland, Porter, Scott, Weiberg & Delehant, Russell G. Porter, Sacramento, for defendant and respondent.

SPARKS, Acting Presiding Justice.

In this appeal we review a summary judgment granted in favor of a utility district in a lawsuit over its operation of a nuclear power facility. A group of more than 200 plaintiffs sought to recover damages from defendant Sacramento Municipal Utility District (SMUD) based upon its operation of the Rancho Seco Nuclear Power Plant (Rancho Seco). Their claims were predicated upon the central allegation that SMUD tortiously discharged radioactive materials into waterways and the atmosphere. The trial court granted summary judgment in favor of SMUD after concluding

that the undisputed facts established as a matter of law that the radiation released by Rancho Seco was not harmful to the public in general [12 Cal.App.4th 218] or to the plaintiffs in particular and that it was not reasonably foreseeable that the releases would cause severe emotional distress or property damage. For the reasons which follow, we conclude that the trial court correctly granted summary judgment and shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Rancho Seco was designed as a 914-megawatt nuclear power generating station. It is located on a 2,500-acre site approximately 25 miles southeast of Sacramento. SMUD began construction on Rancho Seco in 1968 and it became commercially operable in April 1975. The Atomic Energy Commission (AEC), now the Nuclear Regulatory Commission, granted license number DPR-54 to SMUD on August 16, 1974.

Rancho Seco was designed as a pressurized water reactor with two discrete water systems for the generation of electricity. In this process water in a primary water system is heated directly inside a reactor vessel and is then transferred to tanks referred to as "once through steam generators." Water in a secondary water system is pumped through a series of tubes in the steam generators in order to be converted to steam by the transfer of heat from the primary water system. The conversion of water to steam in the secondary system provides the thrust needed to drive turbines for the production of electricity. Water in the primary system is recirculated for reheating in the reactor vessel. Water in the secondary system is condensed through cooling and recirculated to the steam generators for reuse in driving the turbines. A cooling water system, open to the environment, is used to circulate water through pipes in the condenser unit in order to absorb heat from the secondary water system. This water is then transferred to cooling towers to release the absorbed heat into the air.

In the operation of Rancho Seco it was necessary that liquid effluents be released to the environment from the cooling water system and to some extent from the secondary water system. Water utilized by Rancho Seco was discharged into Clay Creek. Clay Creek intersected Hadselville Creek three kilometers from the plant. Hadselville Creek drained into Laguna Creek about six and one-half kilometers from the plant, and Laguna Creek eventually flowed into the Consumnes River. Rancho Seco was designed so that water from the primary system, which would become contaminated with radioactive materials, would not come into contact with water from the secondary system. Thus, in theory, releases of water from the cooling system or from the secondary water system would not release radioactive materials to the environment.

It is apparently not possible to operate a nuclear generating station without releasing some radioactive materials into the environment in airborne and liquid effluents. SMUD's license to operate Rancho Seco permitted it to make such releases. From around 1980 through 1985 there were certain problems which arose at Rancho Seco in connection with the release of these liquid effluents. Further examination of these problems will be facilitated by a brief discussion of the rudimentary principles of radioactivity as well as the federal regulations governing nuclear energy. ¹

Radioactivity is generated in the nucleus of an atom. (Gooden, supra, at p. 1160.) Atomic nuclei are composed of positively charged protons and neutrally charged neutrons. (Gooden, supra, at p. 1159.) Isotopes are different forms of an element that contain the same number of protons but a different number of neutrons. (Gooden, supra, at p. 1160, fn. 17.) Radioactive isotopes are unstable due to the number of neutrons in their nuclei. These isotopes seek a more stable state by giving off energy through radiation. (Gooden, supra, at p. 1160.) This radiation may take several forms, including energetic electrons (beta particles), energetic positively charged electrons (positrons), heavy particles (alphas), and photon energy bundles (gamma rays). (Ibid; Johnston, supra, 597 F.Supp. at p. 384.) The emission of radiation by a single nucleus is called a disintegration. (Gooden, supra, at p. 1161.)

Although radiation is generated in atomic nuclei, its interaction with matter occurs in the orbits of electrons. In a process called ionization, radiation strips electrons from their atoms and sets them in motion as energetic particles. (Gooden, supra, at p. 1160.) These particles cause other ionizations until the total energy of the radiation is expended. (Ibid.) Since orbital electrons are the "glue" of molecular structure and integrity, interference with orbiting electrons by radiation can affect molecular structure. (Id. at pp. 1159-1160.) As ionization occurs in matter, "tracks" or trails of ionized atoms and molecules are produced. The density of these trails differs with the different forms of radiation and is described by the concept of low- or high-linear energy transfer. (Id. at p. 1160; Johnston, supra, 597 F.Supp. at p. 384.) The linear energy transfer of a form of radiation is a factor in assessing its potential for causing injury. (Ibid.)

Radiation injury occurs at the cellular level. Exposure to radiation can cause toxicity within a cell through interaction with cellular water. (Gooden, supra, at p. 1162.) Ionization can also interfere with the structure of molecules which contain the cell's genetic code. (Ibid.) Cell damage from radiation can affect an organism in four different ways: (1) The damage may be repaired without injury to the organism; (2) the damage may kill the cell. This will cause no injurious effect to the organism as a whole unless it involves a large number of cell deaths of specific cell types; (3) the cell may continue to function but lose its ability to reproduce. This also is generally not injurious to the organism unless it involves a large number of specific cell types; and (4) ionization may break the molecular chain containing the cell's genetic code and allow an abnormal recombination. Such a recombination in an organism's reproductive cells could cause genetic damage in succeeding generations. In other types of cells the genetic code for function or cellular reproduction may be altered in such a manner that the injury will not become manifest until years later when it appears in the form of cancer. (Gooden, supra, at p. 1163; Johnston, supra, 597 F.Supp. at pp. 384-385.) Late injury is called stochastic injury because its occurrence is random and appears to follow the statistical laws of probability. (Gooden, supra, at p. 1163.)

Radioactivity is not measured in units of common understanding such as weight or volume. The historic unit of measure for radioactivity is the curie, which equals 3.7 times 10 to the 10th power disintegrations per second. (Gooden, supra, at p. 1162.) The total quantity of radioactive material released to the environment in the operation of a nuclear power plant can be measured in curies.

The duration of a hazard presented by the release of radioactive elements is determined by the half-lives of the types of isotopes released. A half-life is the time it takes for one-half of the radioactive nuclei in a material to disintegrate. (Gooden, supra, at p. 1162.) As nuclei reach stability through disintegration the radioactivity of Absorbed energy doses from radiation are measured in rads. A rad is the basic unit of the measure of energy imparted from radiation to any material through ionization. (Gooden, supra, at p. 1161.) The potential for injury from a particular type of radiation is dependent on the linear energy transfer of that type of radiation. In order to describe the potential for harm from exposure to radiation health physicists multiply absorbed rads by a quality factor specific to the type of radiation to produce dose quantities called rems. (Ibid.) A millirem is one-thousandth of a rem. Rem and millirem are the units of measure used for radiation protection and governmental regulation purposes and are the units of measure relevant in this case. Gamma rays are the most significant form of radiation involved here. Gamma rays have a quality factor of one and thus, with respect to gamma rays, rads are equal to rems.

the source is reduced by a factor of one-half through each succeeding half-life. Half-lives for different elements vary widely, from fractions of a second to...