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Y July 31, 1963 F?ISS FILEasE K2 TEEP.:: CALIFGIII A ASSO:'IATIO:
F3 I:~.DIATE P2 LEASE TO PF2SE?.VE 303E3A HEAD AG EA?.33 2731DurantAvenu's$11-6399 Berkeley 4, Calif.
Telephone: TEornwa The California Public Utilitie s Cc=icsien acted unconstitutionally in its recent denial of a rehearing cr; hazards posed by PG&E's preposed
~~~1 Eodega Bay Atonic Power plant. This allegation was contained in a petition fer rehearing en the issue of radiation dangers in view of the proxi=ity cf
- I the contreversia'1 nuclear power plant to the San Andress Fault filed with f
the CP10 today.
s "The people of Califernia have tere interest in the potential dangers cf this plant than sene renete Federal agency," said David Pesonen, Executiv Secretary of the Northern California Association to Preserve Eodega Head and Earter, which filed the petition.
~.- 4 The real issue, he said, is whether the state or the AE0 decides where q...
y atenic power plants should be built.
"Thus, we are talking about the choice p%
cf the site -not fallout" he asserted, " and this is a s crucial a questien 5
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with respect to conservation of our precicus coastline as it is to the
$"p gpf safety cf the people of Califernia."
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The petition is the first step toward an appeal to the State Suprene p$ 4 Court frcn the July 9 split decision cf the CPIC. A strong defense cf the
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Association's position was lodged in the dissent by Cc=issicn President 0 ;. '
- 71111a= 2. Eennett.
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"Only t11nd cenpulsion would insist upon placing this plant in the an w
~ q%pgH heart of cne of nature's choicest areas and in frightening proxicity to en n
hk 6 active f ault line," Ecnnett said in dissent.
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f BEFORE THE PUBLIC UTILITIES COMMISSION OF j
THE STATE OF CALIFORNIA l
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In the matter of tho' application of
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PACIFIC CAS AND ELECTRIC
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COMPANY for a certificate of public
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Application No. 43808 convenience and necesaity to construct, )
Decision No. 65701 l
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install, operate and maintain Unit No.
9 1, a nuclear power unit, at its Bodega ))
Bay Atomic Park.
(Electrie)
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PETITION FOR REHEARING The Northern California Association to Preserve Bodega Head and Harbor Inc., respectfully petitions the California Public Utilities Commission for a rehearing from the Commissions " Order Denying Reopening" (Decision No. 65701), dated July 9,1963.
The petition for rehearing is made upon each and all of the following i
grounds:
The Commission's decision is based upon an erroneous con-1.
f 1
clusion of law.
f The majority opinion in No. 65701 clearly indicates that three
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members of the Commission have concluded that the Federal government I
l has so pre -empted the area of nuclear reacter safety that the Commission, l
when passing on an application for a certificate of public convenience and necessity, cannot consider whether a given reactor power unit in a given i
area would adversely affect the public.
Petitioner respectfully submits that this is an erroneous analysis of 42 U.S. C. A. (2021 and an abdication of the power and duty of the Commission to safeguard the citizens of this state.
It is true that in 42 U.S. C. A. $2021 Congress indicated an intent to leave certain supervisory powers over nuclear reactors solely within the jurisdiction of the Atomic Energy Commission (hereinafter referred to as However, the statute is clear that this regulatory power reserved "AE C").
to the AEC is only with reference to the " control of radiation hazards by source, or special nuclear materials." U.S. Cong, regulating byproduct, k Ad. News, p. 2879 (1959).
We are not presently concerned with " radiation hasards" but with whether a nuclear reactor located in close proximity to an active earthquake fault l
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can be considered safe.
In 42 U.S. C. A. [2021, subd. (k) it is provided that "Nothing in this section shall be construed to affect the authority of any State or local agency to regulate activities for purposes other than protection against radiation hazards.," The Senate Report on this provision explains that "This sub-gection is intended to make it cicar that the bill does not impair the State authority to regulate activities of AEC licensees for the manifold health, safety, and economic purposes other than radiation protection." U.S.
Cong & Ad. News, p. 2882 (1959, (Emphasis Added).
As stated by Commissioner Mitchell,12021 of 42 U.S. C. A. does not divest the Commission "of its duty and obligation to protect tiie welfare of
- 1 the inhabitants of this State."
Tte majority opinion in No.65701 is incorrect and should not stand.
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2.
Tpe majority opinion in Decision No. 65701 represents l
M unconstitutional delegation of the Commission's authority.
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8 Insofar as the majority opinion implies that the Commission can I
' > rely on the AEC to make the Commission's findings on safety, the opinion is an unconstitutional delegation of the power and duty of the l
q Commi eion.
3.
'The decision in No. 65701 reveals for the first time.that i
1 the Commission failed to snake findings on all of the material
-issuaa.in its. Interim Order (Decision No. 64537).
Section 1705 of the Public Utility Code requires the Commission to
" separately state findings and conclusions upon material issues of fact and law that determine the ultimate issue of public convenience and necessity." '
California Motor Transport Co. v. Pubile Utilities Com., 59 A. C. 283, 288 (196.3).
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.At tho hearing on Applict. tion No. 43808 "the issue of safety loomed large.... " (p. 6, dissenting opinion in No. 65701). When the Commission issued its Interim Order (Decision No. 64337) it was stated that safety was not " irrelevant to the determination of public convenience and necessity" and snat "ide evidance has bem meidered.'? (Decision No.
64537, p. 23)..(Emphasis added)
From.the majority opinion in No. 65701 petitioner has learned for the first-time that the Commission did not consider safety in passing on the application, since that issue was believed pre-empted by Federallaw.
This legal conclusion should have been stated in Decision No. 64537.
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California Motor Transpu.t Co. v. Public Utilitiss Crm.. eupra.
The Commission's ruling that late filed Exhibit No. 48 is 4.
a part of the record, without affording the Commission itself, the staff or petitioner an opportunity to cross-examine the proponents of
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that evidence and perhaps refute it, violates the Commission's duty to conduct a fair hearing, and petitioner's right ther' eto, By refusing to reopen the hearings on Application Nc. 43808 thereby _
prohibiting petitioner from refuting and cross-examining that document,
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the Commission has violated:
'j Rule 55 of the Commission's Rules of Practice; (a)
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Petitioner's right to a fair hearing as guarant'eed by (b) the California Constitution English v. City of Long Beach, 35 C. 2d 155 (1950);
Petitioner's right to a fair hearing as' guaranteed by '
_(c)'
the due process requirements of the United States Constitution.
Ohio Bell Telephone Co. v. Public Utilities Commission, 301 U.S.
292 (1937).
Because the Commission undertook to consider late filed 5.
Exhibit 48 in violation of the federal and state constitutions, of its own rules, of its own duty, and of petitioner's rights in the premises,
'f the said Exhibit constitutes no evidence of the Comrnission's implied finding on the safety of the proposed nuclear reactor, and the order f
denying reopening (No. 65701) wa's made without evidence to support it.
WHEREFORE, petitioner respectfully requests that a rehearing be granted, that Decision No. 65701 be vacated, and that the hearing on Application No. 43808 be reopened to afford petitioner the opportunity to confront and refute late filed Exhibit 48.
Dated at San Francisco, California, this 31st day of July,1963.
i Respectfully submitted, GARRY, DREYFUS k McTERNAN By Benjamin Dreyfus Donald L. A. Kerson 341 Market Stre et San Francisco, California 94105 Attorneys for Northern California Association to Preserve Bodega Head and Harbor, Inc.
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J LETTERk TO THE' gu w= c L.up a a.,
7/ 5i/u o 7hl/h Bauling for Bodega
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- p,*,'k'j **j';*y j hyy b
Editor-The Sonoma county r'egions, large areas ~ should be
' Association for the Development
. turned into park and beach of Bode Bay is for the develop-systems. Some of the remainder Y Cfory L
, ment o[rsthe entire Bodega Bay
'could be sold in small units for
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.micct, includ;ng the Coast Guard private use, and the rest should be On Bodega
,5tation, the University of Cali-telt wild and open to the public.
,fornia's Marine Biological Labora-Bodega Head is an important
, tory, Sonoma county Doran Park, issue in itself, but it is only part Peter H. Behr won a Sonoma Coast State Park, the pri-of a trend to give away something victory of sorts,fn his one-vote marinas and the Bodega Bay we desperately need, in the name man crusade to get fellow Atomic Park-
. of tax rolls and." progress."
members of the Marin s
We wish to correct a mistaken.
.. ANDREW MCDONALD. '
B o a r d of Supervisors to take a stand on the Bode-
.behef held by your newspaper, as *.
Berkeley. ' o ga Head a t o mic power
.well as others, that there is a
, war" between the Bodega Bay -
plant controversy.
, residents and the Pacific Gas and 's Behr, who is opposed to.
, Electric Company.
f the Pacific Gas & Electric.
, We can assure you that this is y 4 Company's proposed nuclear
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.not true. Just last week, the three.1
' plant, has been trying for i
, directors of the Bodega Bay Public '
weeks to persuade the Marin
, Utility District, Otto Henninger/ j Board to discuss the issue.
i
, president, Mitch Zankich, secre J Yesterday they agreed re-l
.tary, and Al Lee, director, passed luctantly, to hold a public s
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.a resolution in favor of the Bodegah meeting to' discuss the matter
. Bay Atomic Park and stated:
'J in the San Rafael Civic Cen-i "We believe over 90 per cent s ter at 2:30 p.m. on August 19.
,of the people in Bodega Bay are i,n, j The catch, from Marin's
, favor of the Bodega Bay Atomic...
point ' of view is that the
.Pa rk."
J.
speaker will be a representa !
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Our organization is finding thisj tive of the Sonoma County:
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.to be true as we have about 200 ;
Association for the Develop-
. members already in the Bodega. <
ment of Bodega Bay - sup-i
. Bay area. We have been in exis a porters of PG&E's project.
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,tence only three weeks and we.g
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.have more than 2000 members in,.3 l
.Sonoma county.
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i PAUL GOLIS.
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Rohnert Park.
Secretary. D
.S'F cren w?R
- ) n c s t, I f O l
Editor-The Chronicle coverage
,of the Bodega Bay residents' oppo-t
,sition to the nuciear power piant dgalin.
A y
calIna go,
.was a public service for which all
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.of us who appreciate natural "
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e,'mac.c'c1H
!On Bodena Head Plant t
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.really gave an understanding pic 9
.ture in his July 21 article in This t A hearing on the proposed a hearing on the controversial
,World.
B dega Head nuclear power atomic plant amour.ted to a E'
San Francisco.
plant in Sonoma County was reversal of its determination scheduled for Aug.19 by the e
e e
Marin County Board of Super-to keep hands off, on grounds g
visors Tuesday.
the plant was sonoma Coun-A Mads,dec,ision'to hold ty,'s affair, not Marin's.
,He d con versy and us an
,ov.ncrship of undeveloped land: It
.seems to me that all levels of
. government are too willing to sell
.public lands to individuals or cor-
,porations for their own private a
, profit.
n All shorelines in and. around ' >
. urban areas should' be publiclyc,j
^
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y THE PRESS DEMOCRAT.
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,PAGE4 MONDAY. JULY 29.19G3 10GTH YEAR, ;
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< '..; EDITORIAL 9
l lA-PlantAdvocates i
WE SEE by a San Francisco newspaper where j the Chambers of Commerce of Pacifica, Half Moon f'
Bay and Princeton-by-the-Sea have written the 1 l'
i president of Pacific Gas & Electric asking that the l.'
i San Mateo coast be considered instead of Bodega Bay for a nuclear-fueled power plant.,
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j "It is our opinion that this would be a step in j
j tune with the progressive spirit of our area," the '
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- written request said, "This is a section that holds
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j great promise in California's future."
j In stressing the progressive spirit of the San i Mateo coastal area, the three Chambers of Com-
,t.
- merce intimated indirectly that Sonoma County and
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i Bodega Bay are backward in both growth and atti-
- tude.
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i Indeed, the activities of the Association for the I, ' #
Preservation of Bodega Head may have resulted in
.} thatimpression.
1 It is incorrect.
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j THE ORGANIZATION fighting building of a nu-p clear plant at Bodega Bay seems to be composed in
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- the main of neople from outside Sonoma County.
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In contrast, the organization working in behalf
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i of the plant in the Sonoma County Association for ;
the Development of Bodega Bay are all Sonoma j County residents. The board of directors of the Bodega Bay Public Utilities District, in adopting a l
fformal resolution in support of the plant, commented.
1 that in their opinion more than 90 per cent of the l'
.. (people in Bodega Bay f avored it.
i Resolutions of support, of course, have long l
since been adopted by organizations elsewhere in l
Sonoma County.
?
Indicating that the directors of the Bodega
! Bay Public Utilities District are pretty accurate in
. their estimate that 90 per cent of the people there
! favor the plant, the Association for the Develop i
i ment of Bodega Bay has amonc its membershin 170
- residents of the Bodega Bav area--and no intensive I ~~ 3 ~ membership drive has been held as yet.
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