AKINS v. SACRAMENTO MUNICIPAL UTILITY DISTRICT (1992)

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 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 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 thousands of years.  (Ibid.)

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 study of the health effects of low-level exposure to radiation is complicated by several factors.²  First, we live in a world of constant exposure to low-level radiation, referred to as background radiation.   Virtually everything is radioactive to some degree, and thus exposure is generated by such diverse things as soil, water, the sun, building materials, even our own bodies.  (Gooden, supra, at p. 1166;  Johnston, supra, 597 F.Supp. at pp. 389–390.)   A person's exposure through background radiation can vary significantly with such things as where the person lives and events in his or her life.   For example, a person living in Colorado will receive considerably more background radiation (60–70 millirem annually) than a person living in Florida or Washington, D.C. (Johnston, supra, 597 F.Supp. at p. 389.)   A typical, round-trip, coast-to-coast flight will result in an additional five-millirem dose.   Medical and dental X-rays, and a plethora of other events can contribute to dosage.  (Gooden, supra, at p. 1166;  Johnston, supra, 597 F.Supp. at p. 390.)   Second, the types of injury which may be caused by low-level radiation are indistinguishable from injury which occurs naturally or from sources other than radiation.  (Gooden, supra, at p. 1163.)   This makes it impossible to identify radiation as the direct source of the injury.   Third, with low-level radiation-induced injury there is typically a long time lag between exposure and the manifestation of injury.   (Ibid.)  Accordingly, study groups must be monitored throughout their lifetimes and consequently the linkage of injury to a particular antecedent event is difficult to detect.

In view of the nature of injuries induced by low-level radiation, experts are relegated to correlative statistical studies in evaluating risk, an approach which is concededly imperfect.  (Gooden, supra, at p. 1164;   Johnston, supra, 597 F.Supp. at pp. 392–394.)   For example, if the average rate of a particular cancer in the general population would predict that 40 members of a study group would naturally develop the cancer, normal statistical variation might predict that 35 to 45 members of the study group will develop the cancer.   If 44 or 45 members of the group develop the cancer then the prevalence of the cancer in the study group would be above an arithmetical average but would not be statistically significant.   The conclusion would be that the study failed to establish a statistically significant correlation between the cancer and the level of exposure of the study group.   The study, of course, would not establish that there was no linkage or that exposure at that level was risk free.   In fact, it appears that scientific consensus does not hold that levels at which statistical significance are obtained establish a threshold under which exposure may be considered risk free.  (Gooden, supra, at pp. 1164–1165;  Johnston, supra, 597 F.Supp. at pp. 390–392.)

The effects of radiation have been extensively studied.  (Gooden, supra, at p. 1165;  Johnston, supra, 597 F.Supp. at pp. 390–391.) ³  In order to make recommendations for safety regulations of radiation, scientists have employed mathematical models to predict risk at levels of exposure below those at which risk is scientifically verifiable.  (Gooden, supra, at p. 1164.)   One model, the linear model or hypothesis, assumes that risk decreases in direct proportion to the decrease in dose.   Another model, the quadratic model or hypothesis, predicts that risk is lower per unit of dose at lower levels of exposure than at higher levels of exposure.   A third model, the linear-quadratic model, predicts risk at levels between the other models.  (Gooden, supra, at p. 127;  Johnston, supra, 597 F.Supp. at p. 393.)   While it appears that the linear-quadratic model is favored by many scientists, (ibid.), the linear model is generally utilized in order to provide a conservative approach for the recommendation of safety standards.   The recommendations of the committees which have studied these questions have been relied upon by governmental regulators in fashioning radiation protection standards which incorporate significant safety margins.  (10 C.F.R. § 140.81, subd. (b)(1) (1991).)

 In the United States, the Nuclear Regulatory Commission (NRC) has the exclusive power to regulate the safety aspects of nuclear power.  (Pacific Gas & Elec. v. Energy Resources Comm'n (1983) 461 U.S. 190, 212–213 [103 S.Ct. 1713, 1726–27, 75 L.Ed.2d 752, 770].) ⁴  Federal preemption of the field is partial:  “the Federal Government maintains complete control of the safety and ‘nuclear’ aspects of energy generation;  the States exercise their traditional authority over the need for additional generating capacity, the type of generating facilities to be licensed, land use, rate-making, and the like.”  (Ibid.)  State authority extends to the imposition of liability for radiation-induced injuries, unless there is irreconcilable conflict between state and federal standards or the imposition of a state standard in a damages action would frustrate the objectives of the federal law.  (Silkwood v. Kerr–McGee Corp. (1984) 464 U.S. 238, 256 [104 S.Ct. 615, 625, 78 L.Ed.2d 443, 457–458].)

As might be expected, the construction, maintenance, and operation of a nuclear power generating facility is extensively regulated by the NRC.   The NRC regulatory scheme includes regulations published in title 10 of the Code of Federal Regulations and in technical specifications applicable to the particular licensed facility.   Under NRC regulations every license incorporates technical specifications specific to the facility which cannot be modified without NRC approval.  (10 C.F.R. § 50.36 (1991).)   In addition, the NRC publishes a regulatory guide which is not binding upon a licensee but which is intended to facilitate compliance with regulations.   The NRC enforces its regulations and oversees operations through a regional office which conducts audits and unannounced inspections, and through a resident on-site inspector.

With respect to exposure of members of the public to radiation from a licensed facility, the NRC regulatory scheme embraces three concepts.⁵  The first is the standard established by the Environmental Protection Agency (EPA) in title 40 of the Code of Federal Regulations, part 190.   That standard limits the permissible annual dose exposure of a member of the public from planned discharges of radioactive materials to 25 millirem to the whole body, 75 millirem to the thyroid, and 25 millirem to any other organ.  (40 C.F.R. § 190.10(a) (1991).) ⁶  Those standards may be exceeded if the NRC grants a variance based upon its determination that temporary and unusual operating conditions exist, continued operation is in the public interest, and information concerning the situation and a schedule for conformance is promptly made a matter of public record.  (40 C.F.R. § 190.11 (1991).)   The NRC has specifically adopted the EPA standard for the regulation of commercial nuclear power plants.  (10 C.F.R. § 20.106(g) (1991).)

The second concept in the NRC scheme is contained in title 10 of the Code of Federal Regulations, part 50, appendix I (hereafter appendix I).   The appendix I standard relevant to this litigation provides an annual public-dose limit of three millirem to the whole body and ten millirem to any organ.   (Appendix I, § II.A.)   At first blush, this standard would appear to conflict with the EPA standard but in fact it does not.   The appendix I standard is what may be referred to as a monitoring guideline.   While the EPA standard is concerned with actual dose exposure to real persons, the appendix I standard is concerned with the potential exposure to a hypothetical maximally exposed individual.   A licensee must periodically calculate the potential dosage to the hypothetical maximally exposed individual.   If this calculation reveals potential dosage in excess of the appendix I guidelines then the licensee must investigate and report to the NRC the reasons and the steps which are being taken to correct the situation.   The NRC may investigate and take such action as it deems appropriate.   The NRC believes that this monitoring standard permits flexibility of operation while ensuring that exposure to actual members of the public will not exceed the EPA limitations adopted by the NRC.  (10 C.F.R. § 50.36a, subd. (b) (1991).)   But the appendix I guidelines are not safety regulations.   With respect to these guidelines, NRC regulations provide:  “These numerical guides for design objectives and limiting conditions for operation are not to be construed as radiation protection standards.”  (10 C.F.R. § 50.34a, subd. (a) (1991).) ⁷

The third concept embraced by NRC regulations is known by the acronym ALARA, which stands for “as low as reasonably achievable.”   The ALARA policy operates in conjunction with the flexibility provided in the appendix I guidelines.   NRC regulations state that experience has shown that compliance with the appendix I guidelines will keep average annual releases of radioactive materials at small percentages of the EPA standard while permitting the licensee flexibility of operation compatible with considerations of health and safety.   In using this operational flexibility, a licensee is expected to use its best efforts to keep levels of radioactive materials in effluents as low as reasonably achievable.  (10 C.F.R. § 50.36a, subd. (b) (1991).)

With this background we may return to our discussion of the events at Rancho Seco.   It appears that before 1981 SMUD did not release radioactive materials in its liquid effluents into the surrounding environment.   Beginning in 1981 pressure leaks developed in the tubes in the once-through steam generators.   This enabled radionuclides in the primary water system to be transferred into the secondary water system.   Contaminated water was shipped offsite for disposal until the early 1980's, when a regulatory change precluded this method of disposal.   Rancho Seco was equipped with resin demineralizers and a demineralized reactor coolant storage tank (DRCST) to remove most radioisotopes from wastewater.   However, it appears that these systems did not function properly and frequent shutdowns generated more wastewater than the system could handle.   In late 1982 SMUD created a temporary system modification by constructing a conduit from the DRCST to the regeneration hold-up tanks (RHUTs), in which water would be tested, transferred to on-site retention basins, and ultimately released into Clay Creek.   Although this modification was considered temporary, it was used from time to time for several years.

When SMUD began generating reports of offsite doses in 1975, it utilized the original LADTAP (liquid annual doses to all persons) computer code provided by the NRC.   This code was implemented by SMUD without a clear understanding of all of the factors contained in the code.⁸  After the computer program was implemented the responsibility for generating reports was delegated to persons who were unskilled in the fields of health physics and dose-calculation computer codes.

In 1983 the responsibility for dose calculations was assigned to a supervising health physicist.   He began the process of code validation, verification and updating.   In the process he discovered problems with respect to dose calculations for liquid effluents.⁹  On March 23, 1984, the health physicist recalculated 1983 appendix I values and obtained a result slightly in excess of appendix I guidelines.   SMUD reported this finding to the NRC by telephone on March 26, 1984.   The health physicist continued revising the code and on April 6, 1984, obtained a 106 millirem appendix I calculation.   SMUD informed the NRC of this result by telephone on April 17.   For the next several months SMUD and the NRC investigated the matter.

On September 27, 1984, SMUD released special report number 84–07.   There SMUD acknowledged that in 1984 (through August 31) calculated doses to the hypothetical maximum individual exceeded appendix I standards and would exceed EPA standards if an actual person were exposed.   It reported a total body exposure to a maximum adult of 185 millirem and a liver exposure to a maximum child of 302 millirem.   SMUD identified leaks in the steam generators as the root cause of problem and described the methods utilized to repair the leaks and avoid future releases in excess of appendix I guidelines.   The NRC informed SMUD that in view of the near-term corrective actions it had taken and the long-term corrective actions it planned, it would not be required to obtain a variance for continued operation.

This did not end the matter.   The appendix I hypothetical dose calculations required SMUD, and caused the NRC, to further investigate.   SMUD hired the Lawrence Livermore National Laboratory (Lawrence Livermore) to conduct an independent investigation into offsite contamination and the exposure of members of the public.   The NRC hired the Oak Ridge National Laboratory (Oak Ridge) to conduct a similar investigation.   Other independent laboratories which were involved in the investigation included Helgeson Scientific Services (Helgeson) and the Bechtel Corporation (Bechtel).   For the next several years the environment surrounding Rancho Seco and the potential exposure of members of the public were extensively investigated.

We will discuss some of the specifics of these investigations in a subsequent portion of this opinion.   At this point it is sufficient to note the overall results from these investigations.   First, no member of the public, including any of the plaintiffs, received a dosage in excess of, or for that matter even approaching, the EPA standard.   Second, no radioactivity of plant origin was detected on land belonging to any of the plaintiffs.   Third, radionuclides released from Rancho Seco had not penetrated to the groundwater in the area surrounding the facility and, in view of subsurface depth of the groundwater, the slow surface-to-groundwater migration rate, and the relatively short half-lives of the released isotopes, never would.   Finally, the amount of radioactivity detected in the environment decreased with distance from the plant and was significantly decreasing over time since the discovery of the problems.

Based upon these investigations the NRC concluded that SMUD had not violated the EPA standard and that the releases of radioactive material which had occurred were not significant.   In June 1986 the investigation with respect to health and safety questions was officially closed.   However, the NRC continued to investigate SMUD's operation of Rancho Seco with respect to management concerns which had arisen.

In addition to the problems we have previously outlined, the continued investigation revealed a further issue.   Equipment used to test liquid effluents before release has a technological lower limit of detection (LLD), which defines the ability of the equipment to detect low levels of radioactivity.   The LLD of testing equipment can be affected by the length of time (time-count) of the test.   It appeared that in 1985 some Rancho Seco management personnel made the assumption that their testing procedures would be adequate if their LLD was sufficient to ensure that applicable dose limits would not be exceeded.   Technicians were instructed that if they detected radioactivity with the usual 2,000–second time-count, then the sample should be retested at 1,000 to 1,500 seconds and the effluent released if no radioactivity were detected in the retest.   This procedure was inconsistent with NRC policy that all detectable radioactivity be reported and with the ALARA concept and was also inconsistent with SMUD's public promise to release no radioactive materials.

Eventually, in January 1989, the NRC issued a notice of violation and proposed imposition of civil penalty.   The notice alleged six violations:  (1) SMUD had failed to establish an adequate surveillance program to provide data on quantities of radioactive material released in liquid effluents to assure compliance with appendix I guidelines.   This related to the count-times utilized to test liquid effluents before release;  (2) SMUD had created and utilized the temporary conduit to transfer water from the DRCST to the RHUTs without having performed an evaluation to determine whether a change in its technical specifications was required or if an unreviewed safety question was involved and without having created or maintained a written record of a safety evaluation;  (3) On three occasions in June 1985 measurable concentrations of Cs–137 were identified in liquid effluents but were not reported.   This also related to the count-time and reporting procedure for detecting radioisotopes in waste water;  (4) During calendar year 1985 the potential dose to a hypothetical maximally exposed individual was three and nine-tenths millirem, which exceeded the three-millirem appendix I guideline;  (5) In connection with the temporary conduit from the DCRST to the RHUTs, SMUD failed to establish written procedures to control the transfer of water;  and (6) From January to March 1986 SMUD implemented a temporary change in procedures for the transfer of water from the DRCST to the RHUTs without approval by its plant review committee.   SMUD acknowledged the violations, accepted the civil penalty, and described the corrective measures it had taken.

Plaintiffs commenced this litigation relatively early in this series of events.   On March 15, 1985, plaintiffs filed a government entity claim for personal injury and property damages.¹⁰  In connection with filing the claim plaintiffs' counsel met with reporters to publicize the action.   He asserted that SMUD had been discharging radioactive material in violation of NRC standards for years and that the whole area surrounding Rancho Seco was contaminated.   He described the circumstances as “a horrendous situation” and “absolutely incredible.”   He said the Three Mile Island incident (see In re TMI Litigation Cases Consol. II (3d Cir.1991) 940 F.2d 832), was a “drop in the bucket” compared to this one.   SMUD denied the claim and this litigation was commenced.

The first amended complaint sets forth seven causes of action.   The first, for negligence, alleged in part that SMUD negligently caused “radioactive contamination by deliberately discharging, under erroneous formula calculations, large quantities of water that contained radioactive materials many times greater than that permitted by the safety standards and guidelines set forth by the United States Nuclear Regulatory Commission․”  This count further alleged that SMUD had “likewise permitted nuclear radioactive leakage at said Plant to negligently be discharged into the atmosphere, ․”  As a proximate result of this negligence, “plaintiffs have been hurt and injured in their health, strength and activity, sustaining injury to plaintiffs' bodies and shock and injury to plaintiffs' nervous system and person, ․”

The second cause of action, entitled “Assault, Battery and Intentional Infliction of Emotional Distress,” alleged in pertinent part that SMUD “did without provocation commit a battery on the person of each plaintiff by willfully, unlawfully, and wantonly releasing radioactive material into the air and into the water․”  As a result of this misconduct, “plaintiffs have been and are presently placed in great fear for their lives and physical well-being and have suffered extreme and severe mental anguish and physical pain․”

The third cause of action for intentional misrepresentation alleged that SMUD “falsely and fraudulently represented to plaintiffs that the Rancho Seco Nuclear Power Plant was being operated safely and that no radioactive contamination was being released into the waterways adjacent to said Rancho Seco Nuclear Power Plant.”

The fourth cause of action entitled “Strict Liability—Ultra–Hazardous Activity” alleged that the operation of Rancho Seco constituted an ultra-hazardous activity.   Plaintiffs have abandoned this cause of action on appeal by acknowledging that they “do not appeal the grant of summary judgment as to the fourth cause of action, ․”  The fifth cause of action was for inverse condemnation and asserted that plaintiffs' properties have been contaminated with radioactive material from Rancho Seco and that they have not received compensation for the damages to their properties.   The sixth was for public and private nuisance and in general alleged that SMUD operated Rancho Seco in such a manner as to constitute a public and private nuisance.   The seventh and last cause of action was for trespass and asserted that SMUD wrongfully caused radioactive material to enter upon plaintiffs' lands.

In connection with filing their claim, plaintiffs' counsel hired EAL Corporation (EAL) to conduct an independent analysis of the contamination in the area.   In April and May 1985, EAL submitted the results of its investigation to counsel.   Those results were consistent with the results obtained by Lawrence Livermore and Oak Ridge.   Counsel did not communicate the results of the investigations he commissioned to his clients.   Later plaintiffs dropped their claims for actual exposure injuries when their counsel stipulated that no plaintiff was making a physical injury claim relating to alleged radiation from Rancho Seco.   Accordingly, all such exposure claims were ordered dismissed.   Instead, plaintiffs sought compensation based upon the alleged fear of exposure.

The trial court granted summary judgment in favor of SMUD.   As the trial court saw it, “the fundamental issue in this case is whether radiation harmful to the public was released by Rancho Seco.   And if so, was it foreseeable that such release would proximately cause severe emotional distress and property damage.”   The court concluded that the “dosage calculation facts are rendered undisputed because the declarations offered by the Plaintiffs in opposition to the [SMUD's] dosage calculations do not truly traverse [SMUD's] experts' calculations.”   The court was led to this conclusion for several reasons.   First, the experts offered by plaintiffs were not qualified in dosimetry.   In any event, their opinions were “otherwise speculative, vague and indefinite.”   Second, the undisputed facts established that plaintiffs were not exposed to harmful levels of radioactive releases.   The radioactive releases from Rancho Seco were of a “low level.”   The EPA and NRC have set 25 millirem per year as a radiation protection standard for the general public.   In addition, the United States has established as a matter of national policy that 10 millirem constitutes a dose rate that is “below regulatory concern.”   No plaintiff received an annual dose in excess of six and nine-tenths millirem while the average annual dose for all plaintiffs was less than two millirem.   Indeed, 90 of the 208 plaintiffs received a “zero dose.”   In light of this record the trial court concluded that no triable issue of material fact existed and that SMUD was entitled to judgment as a matter of law.   This appeal followed.

DISCUSSION

IIssues Concerning Exposure

Plaintiffs contend on appeal that California law permits recovery in cases such as this one where they claim emotional distress without present physical injury as a result of SMUD's negligent or intentional misconduct in releasing radioactive waste.   They argue that recovery for intentional infliction of emotional distress is permitted where, as here, the uncontested evidence shows that SMUD engaged in extreme and outrageous conduct by illegally releasing radioactive waste and then lying about it and that plaintiffs suffered severe emotional distress as a result.   They further argue that their opposition papers established that SMUD's radiation releases interfered with their use and enjoyment of their property, giving rise to the several causes of action for property damage.   Thus, plaintiffs submit that their opposing papers established triable issues of material fact as to each cause of action forming the basis of this appeal.   They argue that the trial court usurped the jury's function when it chose to credit the opinions of SMUD's experts and dismissed those of plaintiffs' experts on the grounds they were conclusory or unfounded.   These arguments are unpersuasive.

The summary judgment statute directs that “[t]he motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law․”  (Code Civ.Proc., § 437c, subd. (c);  see also Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 134, 211 Cal.Rptr. 356, 695 P.2d 653.)  “This circumstance exists when the evidence in support of the moving party would be sufficient to sustain a judgment in his favor and the opposing party has not presented any facts which give rise to a triable issue of material fact.”  (Imperial Casualty & Indemnity Co. v. Sogomonian (1988) 198 Cal.App.3d 169, 177, 243 Cal.Rptr. 639.)

 On appeal from a summary judgment we apply the same standard as did the trial court.  (California Aviation, Inc. v. Leeds (1991) 233 Cal.App.3d 724, 731, 284 Cal.Rptr. 687.)   Hence, we must independently review the papers and documents submitted in support of and opposition to the motion in order to determine whether there exists a triable issue of material fact.  (AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064–1065, 225 Cal.Rptr. 203.)   In order for a defendant to obtain a summary judgment his moving papers must establish facts which both negate the plaintiff's claim and justify a judgment in his favor.   (Ibid.)  If the moving defendant has made such a showing then we must determine whether the plaintiff's counter showing demonstrates the existence of a triable, material issue of fact.  (Ibid.)  The summary judgment procedure must be used with caution and thus we must strictly construe the moving party's showing and liberally construe the showing of the opposition.  (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107, 252 Cal.Rptr. 122, 762 P.2d 46.)   Any doubts must be resolved in favor of the party opposing the motion.   (Ibid.)

 On the other hand, a motion for summary judgment should not be denied merely because the opposing party contends he is entitled to a jury trial on the allegations of his complaint.  (Shepherd v. Jones (1982) 136 Cal.App.3d 1049, 1062, 186 Cal.Rptr. 708.)   Nor may such a motion be denied simply because a jury conceivably might disbelieve all of the uncontradicted evidence presented by the moving party.  (Imperial Casualty & Indemnity Co. v. Sogomonian, supra, 198 Cal.App.3d at p. 181, 243 Cal.Rptr. 639.)   Rather, the “party opposing the summary judgment ․ must make an independent showing by a proper declaration or by reference to a deposition or another discovery product that there is sufficient proof of the matters alleged to raise a triable question of fact if the moving party's evidence, standing alone, is sufficient to entitle the party to judgment.”   (Buehler v. Alpha Beta Co. (1990) 224 Cal.App.3d 729, 733, 274 Cal.Rptr. 14.)   Moreover, the existence of a factual dispute will not defeat a motion for summary judgment unless the fact in dispute is one which is material to the action.  (Hidalgo v. Anderson (1978) 84 Cal.App.3d 378, 381, 148 Cal.Rptr. 557.)   And the facts which are material to the action are defined by the scope of the pleadings;  counterdeclarations in opposition to summary judgment are no substitute for amended pleadings.  (AARTS Productions, Inc. v. Crocker National Bank, supra, 179 Cal.App.3d at p. 1065, 225 Cal.Rptr. 203.)

 Furthermore, a judgment cannot be based upon suspicion, imagination, speculation, surmise, conjecture, or guesswork.  (Krause v. Apodaca (1960) 186 Cal.App.2d 413, 418, 9 Cal.Rptr. 10.)   It follows that if the moving party has made a sufficient showing, the party opposing summary judgment must produce evidence which does more than merely raise suspicions about the movant's showing and which is not based upon conjecture.

 Finally, where a moving party is otherwise entitled to summary judgment, a trial court generally may not deny the motion based upon credibility of the movant's declarants.  (Code Civ.Proc., § 437c, subd. (e).) ¹¹  And evidence which merely challenges the credibility of the evidence of an opponent does not constitute affirmative evidence in support of a contrary conclusion.  (California Shoppers, Inc. v. Royal Globe Ins. Co. (1985) 175 Cal.App.3d 1, 48–49, 221 Cal.Rptr. 171.)

 In moving for summary judgment SMUD sought to show that the plaintiffs' potential exposure to radioactivity of Rancho Seco origin was insignificant and well below regulatory standards.   In support of this assertion SMUD submitted the results of the investigations and studies conducted by Lawrence Livermore, Oak Ridge, EAL, Helgeson, Bechtel, and others.   These studies began in 1984 and continued for several years.   During these investigations scientists collected and analyzed samples of such diverse things as creek water and sediments, well water and real property, fish, frogs, waterfowl, milk, meat, and vegetation in areas within 27 kilometers (16.78 miles) of the facility.   People living in or utilizing the area were identified and interviewed to determine their potential exposure to radiation from direct, gaseous, aquatic, terrestrial, and dietary sources.   Those persons who were identified with the greatest potential exposure were asked to submit to a whole body count, which is a sensitive procedure designed to detect absorbed radiation.   Scientific experts then utilized the information gathered during these investigations to determine potential dose exposures of the plaintiffs.¹²  In making these determinations the experts consistently employed a conservative approach so that dose exposure would be overestimated rather than underestimated.

During the numerous whole body counts which were performed, no radioactivity was detected other than naturally occurring potassium.   The sensitivity of the testing procedure was such that radioactivity would have been detected if an individual had received a dosage of even a small percent of the EPA standard.   Based upon all of the information obtained during the scientific investigations SMUD's experts were able to calculate potential dose exposures for the various plaintiffs and other persons for 1984, the year of greatest potential exposure.   Those calculations revealed that a substantial portion of the plaintiffs received no potential dose exposure at all.   Of those for whom a positive potential dose was calculated, the majority were below one millirem with a substantial portion of the others between one and two millirem.   The highest potential dose calculations were for Cecil Handley and Conrad Weisker, who had potential dosages of six and seven-tenths and six and sixty-eight one-hundreths millirem, respectively.   These dosages are well below the 25–millirem regulatory standard of the NRC and EPA.

Plaintiffs argue that SMUD's appendix I hypothetical dose calculations create a triable issue of fact whether SMUD violated the EPA dosage standard which is incorporated by NRC regulations.   We have already explained the difference between the appendix I hypothetical calculations and the EPA standard.   Appendix I guidelines do not constitute radiation protection standards.   The appendix I calculation of a hypothetical dose does not necessarily reflect actual dosage and was not intended to serve as a substitute for actual dose calculations in determining whether the EPA standard has been exceeded.   An appendix I calculation is neither an admission, nor evidence, of actual exposure levels of real people.

Plaintiffs' evidentiary response to SMUD's dosage calculations integrated their claim of unacceptable risk with the question of potential exposure without clearly addressing either question.   These are discrete issues which require separate treatment.   We will leave the question of cognizable risk for subsequent discussion and will here focus on plaintiffs' showing with respect to potential exposure.

With respect to dosage, plaintiffs' witnesses asserted that SMUD released large amounts of radioactive material;  that its witnesses focused upon cesium isotopes and ignored other radiation-producing isotopes;  that SMUD's witnesses relied upon unproven assumptions;  and that it is impossible to accurately estimate the dosage to which the plaintiffs were exposed.

There is no dispute that SMUD's license to operate Rancho Seco permitted it to release some radioactive materials in its liquid effluents.   NRC guidelines and the technical specifications applicable to Rancho Seco provide maximum total quantities, measured in curies, of radioactive materials which may be stored or released from the site.   There is nothing in the record to establish that SMUD violated these guidelines.   Under these circumstances plaintiffs' naked characterization of SMUD's releases of radioactive materials as “large” does nothing to demonstrate a triable issue of fact.

The assertion that SMUD's witnesses ignored all but the cesium isotopes is belied by the record.   The reports and tables created during the various investigations establish that samples were tested for all isotopes which may have been released from Rancho Seco.   Other than the cesium isotopes Cs–137 and Cs–134, the only isotope detected in quantities which could contribute to dosage was the cobalt isotope Co–60, which had the potential of contributing only three-tenths of one percent to potential dosage.   In response to plaintiffs' assertions, SMUD's witnesses submitted declarations confirming that they had actually tested for and considered isotopes other than the cesium isotopes, which was already clear from the record.¹³

The assertion that SMUD's witnesses relied upon unfounded assumptions is also belied by the record.   Appendix I calculations for the hypothetical maximally exposed individual do rely upon assumptions, but the calculations of SMUD's experts in support of the motion for summary judgment were not appendix I calculations.   For their calculations SMUD's witnesses relied upon actual information obtained during the extensive investigations of areas surrounding Rancho Seco.   Of course, the exposure of a particular person would depend upon variables peculiar to that person.   For example, exposure from radioactivity in the creek water or sediments would depend upon time spent in or near the creek.   And exposure from consumption of fish from the creek would depend upon the amount of fish consumed.   In calculating the dosages for the plaintiffs, SMUD's experts relied upon information obtained from the plaintiffs themselves.   In each instance they utilized the highest level of exposure consistent with the information provided in order to overstate rather than understate potential dosage.

The assertion that it is impossible to calculate potential dosages is unsupported by any reasoning and appears contrary to the scientific consensus and the entire foundational basis for the NRC regulatory scheme.   To be sure there is some potential for variation since dosage calculations must rely upon information obtained from the recollection of potentially exposed individuals and extrapolation from actual test results for pathways of exposure.   However, plaintiffs' experts make no effort to explain why reliance upon that information will not produce a fairly accurate measure of dosage.   Bereft of any explanation, these unsupported assertions of plaintiffs' experts are not entitled to any evidentiary value.  (Pacific Gas & Electric Co. v. Zuckerman, supra, 189 Cal.App.3d at p. 1135, 234 Cal.Rptr. 630.)

While plaintiffs' submissions are not responsive to the evidence presented in support of SMUD's motion for summary judgment, they are deficient for a more fundamental reason.   Plaintiffs' submissions are, at best, a challenge to the credibility of SMUD's showing.   Under the circumstances of this case, a trial court may not deny a motion for summary judgment based upon credibility.  (Code Civ.Proc., § 437c, subd. (e).)  And, as we have noted, a challenge to the credibility of the evidence of an opponent does not constitute affirmative evidence in support of a contrary conclusion.  (California Shoppers, Inc. v. Royal Globe Ins. Co., supra, 175 Cal.App.3d at pp. 48–49, 221 Cal.Rptr. 171.)   Unconvincing evidence simply fails to prove the matter asserted;  it does not prove that the opposite is true.  “If a witness testifies, for instance, that it was not raining at the time of the collision, and if the jury disbelieves that testimony, such disbelief does not provide evidence that it was raining at the time of the collision.”  (Id. at p. 48, 221 Cal.Rptr. 171, emphases in original.)   In such a case, there would be no credible evidence on the question of whether it was raining or not.   But unlike a trial, the opposing party cannot defeat a summary judgment motion merely by attacking the credibility of the moving party's witnesses.   As two noted commentators have observed, “[i]f the case went to trial the opposing party might conceivably prevail simply by raising issues as to the credibility of the moving party or his or her witnesses.   But that is not enough to defeat a motion for summary judgment!   There must be evidence to controvert the facts set forth in the moving party's declarations.”  (Weil & Brown, Cal. Practice Guide:  Civil Procedure Before Trial (The Rutter Group 1991) [¶] 10:201, p. 10–49, emphases in original.)   In short, the opposing party must show that some material fact other than witness credibility is in controversy.   It is true that the “[c]ounteraffidavits and declarations need not prove the opposition's case;  they suffice if they disclose the existence of a triable issue of fact.”  (Perkins v. Howard (1991) 232 Cal.App.3d 708, 712, 283 Cal.Rptr. 764.)   But in order to defeat such a motion a plaintiff must do more than simply make factually unsupported allegations in his complaint and then question the evidence the defendant produces to disprove those allegations;  he must produce evidence which raises a triable issue of material fact in support his own allegations.   For example, if the fact that it was raining were indispensable to plaintiff's recovery and defendant's summary judgment papers established that it was not raining, then plaintiff's opposing papers would have to show a triable issue of fact concerning the presence of rain rather than merely showing that defendant's witnesses may have been mistaken about the weather.

In opposition to the motion for summary judgment in this case the plaintiffs pointed to no evidence which would affirmatively support the conclusion that they were subjected to potential dose exposure in excess of the dosages calculated by SMUD's witnesses.   Accordingly, the trial court properly accepted those dose calculations for purposes of ruling on the summary judgment motion.

In moving for summary judgment SMUD asserted that the exposure levels of the plaintiffs were trivial and insignificant.   In support of this characterization SMUD relied upon the convergence of several courses of reasoning.   First, SMUD relied upon risk calculations derived by scientific committees using the linear hypothesis.   These calculations reveal a very low, even minuscule, level of risk from exposure to low dosages of radiation.   For example, such calculations predict that in a population group of 200 persons who are exposed to acute additional annual dosages of two millirem per year throughout their lives, there would be expected to result .00016 additional fatal cancers.¹⁴  The calculations for other types of risks were virtually nil.   Second, SMUD relied upon the comparisons of dosages from other sources.   For example, the average annual dose absorbed by persons in this country is 360 millirem per year.   About 40 millirem per year are from sources which occur naturally within the human body.   A person's place of residence results in an additional one millirem per year for every 100 feet above sea level.   Living or working in a brick or stone building rather than in a wood-frame building will subject a person to significant additional dosages, as much as 30 to 500 millirem annually.   And a single chest X-ray with modern equipment results in a 10 millirem dose.   Third, SMUD relied upon a 1990 policy statement of the NRC in which it was concluded that nonpower generation practices which cannot result in individual dosages of more than 10 millirem per year are below regulatory concern and may be granted exemptions from the normal regulatory processes.

In response plaintiffs relied upon four witnesses.   Dr. Alice Stewart is a medical doctor from England who has extensive experience in radiation-related cancer risks.   She declared that all exposure to radiation carries a health risk.   She rejects the idea that the linear hypothesis produces a conservative estimate of the risk of low-level exposure to radiation.   She believes that in the future dose-exposure levels which are now regarded as acceptable will be reduced.   However, at her deposition she admitted that her views are on the “fringes” of science, meaning that they are not accepted by the scientific or medical community.   Her views have not been scientifically proven, which she attributes to a lack of sufficient research.   She had not attempted to perform any risk calculations for any of the plaintiffs.   At her deposition Dr. Stewart was asked to perform a risk analysis.   While her theories produce results which are higher than the risk figures which are scientifically and medically accepted, those results still reflect a very low-level risk at low levels of exposure.

Dr. Janice Kirsch is a medical doctor who specializes in oncology.   She believes that there is no level of exposure to radiation which carries no risk, that is, there is no threshold below which exposure can be considered risk free.   She disagrees with the view that the linear hypothesis will tend to overestimate cancer risks for low-level exposures.   Since any exposure carries some risk, she does not believe that any exposure that has no diagnostic or therapeutic benefit can be characterized as trivial or insignificant.   However, at her deposition she conceded that the risk of harm from dosages below 10 millirem is “real small” and would be nothing to worry about.

Dr. Roland Finston is a health physicist at Stanford University.   He stated that exposure to a single particle or ray has some potential for causing harm.   He stated that science to date has been unable to prove whether there is or is not an increased risk from variations in levels of natural background radiation.   He stated that the plaintiffs have an unknown risk of contracting a significant clinical disease.   That opinion was based upon the view that plaintiffs' exposure is unknown but substantial.   When asked how he would calculate risk from known exposure levels he said he would rely upon reports of the BEIR committee, which endorses the linear hypothesis.

Dr. Kosta Tsipis holds a doctorate in high energy nuclear physics.   He stated that in the last 50 years there has been a trend, which he expects to continue, in which levels of exposure believed to be safe have been set lower and lower.   He did not offer a specific opinion with respect to the risk at levels of exposure under the EPA standard, and in his deposition admitted that he is not an expert on the biological effects of ionizing radiation.

The assertion that there is no threshold at which exposure to radiation presents zero risk is not subject to dispute.   SMUD's witnesses did not postulate that there is any level of exposure at which there would be no risk.   Although there appears to be a minority view otherwise, the scientific committees which have studied and reported on the subject, as well as the NRC, have eschewed the notion of a totally risk-free threshold level of exposure.   The aim of these groups has been to provide a measure of the risk associated with levels of exposure in order to enable policy makers to weigh risks against the social utility of a practice and to set appropriate public protection standards.   The scientific consensus is that the dose levels to which the plaintiffs may have been exposed present risk at very low levels of magnitude.

 It is apparent that plaintiffs and their expert witnesses would like to use this litigation as a referendum on the efficacy of nuclear power generation through the microcosm of a jury trial.   But that is not the purpose of tort litigation and fundamental policy determinations are not a jury's function.   There is risk in virtually all human endeavors and the law does not attempt to create a risk-free world.   Tort law is intended to compensate someone who is injured when the defendant's conduct has created an unreasonable risk of harm.  (Dillon v. Legg (1968) 68 Cal.2d 728, 739, 69 Cal.Rptr. 72, 441 P.2d 912;  Crane v. Smith (1943) 23 Cal.2d 288, 298, 144 P.2d 356.)  “Defendant owes a duty, in the sense of a potential liability for damages, only with respect to those risks or hazards whose likelihood made the conduct unreasonably dangerous, ․”  (Dillon v. Legg, supra, 68 Cal.2d at p. 739, 69 Cal.Rptr. 72, 441 P.2d 912.)

 Although plaintiffs conceded that they suffered no actual physical injury as a result of exposure to radiation, they continue to assert that they were subjected to hazardous levels of exposure.   Stripped to its essence, their argument in this respect is twofold in nature.   First, they rely upon the views of Dr. Stewart, who believes that the linear hypothesis may underestimate the risk from low-level exposure.¹⁵  She admitted that her views have not been scientifically proven and that they are not accepted by the scientific and medical communities.   Scientific theories which are not generally accepted in the relevant scientific community cannot be accepted as evidence at a trial.  (Huntingdon v. Crowley (1966) 64 Cal.2d 647, 653–654, 51 Cal.Rptr. 254, 414 P.2d 382;  see also People v. Shirley (1982) 31 Cal.3d 18, 54, fn. 32, 181 Cal.Rptr. 243, 723 P.2d 1354;  People v. Kelly (1976) 17 Cal.3d 24, 30, 130 Cal.Rptr. 144, 549 P.2d 1240.)   Plaintiffs have pointed to no evidence which would support a conclusion that the relatively low levels of their potential exposure would present risk greater than that predicted by the scientifically accepted linear hypothesis.

 The second prong of plaintiffs' assertion is that no risk, however slight, can ever be characterized as trivial or insignificant.   Tort litigation is not the place to resolve philosophical debates whether any risk can be characterized as “trivial” or “insignificant.”   To be legally cognizable the defendant's conduct must create an unreasonable risk of harm.   (Dillon v. Legg, supra, 68 Cal.2d at p. 739, 69 Cal.Rptr. 72, 441 P.2d 912;  Crane v. Smith, supra, 23 Cal.2d at p. 298, 144 P.2d 356.)   And an assessment of the magnitude of the risk created by the defendant's conduct is an important factor in determining whether the plaintiff has a cause of action.  (Crane v. Smith, supra, 23 Cal.2d at p. 298, 144 P.2d 356;  see also Ballard v. Uribe (1986) 41 Cal.3d 564, 572–573, fn. 6, 224 Cal.Rptr. 664, 715 P.2d 624.)   Regardless of verbal characterizations, the risk created by very low-level exposure to radiation is of very low magnitude and certainly does not present a situation in which actual injury is substantially likely to follow.

We conclude that plaintiffs have not presented a triable issue of fact with respect to their claim that they were subjected to unduly dangerous levels of exposure to radiation and that they cannot be permitted to pursue compensation in tort for exposure qua exposure.   The creation of risk will not, standing alone, support an award of damages;  rather, the plaintiff must also prove an actual injury resulting from the risk.  (Alhino v. Starr (1980) 112 Cal.App.3d 158, 176, 169 Cal.Rptr. 136.)   Speculative harm or the threat of future harm will not suffice.  (Ibid.)  “Damages may be awarded in a judicial proceeding, for detriment resulting after the commencement thereof, or certain to result in the future.”  (Civ.Code, § 3283.)   At a minimum, potential exposure to toxic substances cannot be equated with actual injury in the absence of a showing of a substantial likelihood that future injury will result.  (See Bauman v. San Francisco (1940) 42 Cal.App.2d 144, 163–165, 108 P.2d 989;  Sterling v. Velsicol Chemical Corp. (6th Cir.1988) 855 F.2d 1188, 1204–1205;  Laswell v. Brown (8th Cir.1982) 683 F.2d 261, 269.) ¹⁶  Plaintiffs have pointed to no evidence to support such a showing.

 In any event, in this respect at least, we conclude that plaintiffs' claims are barred by federal preemption.   We have noted that the federal government has preempted the safety and “nuclear” aspects of energy generation (Pacific Gas & Elect. v. Energy Resources Comm'n, supra, 461 U.S. at pp. 212–213 [103 S.Ct. at pp. 1726–27, 75 L.Ed.2d at p. 770] ), but that state authority extends to the imposition of liability for radiation-induced injuries unless there is irreconcilable conflict between state and federal standards or the imposition of state liability in a damages' action would frustrate the objectives of federal law (Silkwood v. Kerr–McGee Corp., supra, 464 U.S. at p. 256 [104 S.Ct. at p. 625, 78 L.Ed.2d at pp. 457–458] ).   Based upon these decisions, there is a split of authority on the role that federal regulations play in an action for damages under state tort law.   Some courts have concluded that federal safety regulations establish the duty element of a state tort cause of action and that there can be no liability in the absence of a violation of federal standards.  (See In re TMI Litigation Cases Consol. II, supra, 940 F.2d at pp. 859–860;  Hennessy v. Commonwealth Edison Co. (N.D.Ill.1991) 764 F.Supp. 495, 501;  O'Conner v. Commonwealth Edison Co. (C.D.Ill.1990) 748 F.Supp. 672, 678.)   Other courts have held that a defendant can be liable for radiation-induced injury even though it substantially complied with federal regulations unless under the circumstances the imposition of liability would be in irreconcilable conflict with federal standards or would frustrate the objectives of federal law.  (See Silkwood v. Kerr–McGee Corp. (10th Cir.1985) 769 F.2d 1451, 1456–1457;  Bennett v. Mallinckrodt, Inc. (Mo.App.1985) 698 S.W.2d 854 [73 A.L.R.4th 553].)   We need not enter into this debate.   Whatever may be said with respect to an action for recovery of damages based upon actual injury, a claim that mere potential exposure at levels below federal radiation protection standards creates a sufficiently unreasonable risk of harm to support compensation for the exposure itself “would conflict directly with the countervailing judgment of the NRC” and “would also be in the teeth of the Atomic Energy Act's objective to insure that nuclear technology be safe enough for widespread development and use,” and would accordingly fall within matters foreclosed to the states.  (Pacific Gas & Elec. v. Energy Resources Comm'n, supra, 461 U.S. at p. 213 [103 S.Ct. at p. 1726–1727, 75 L.Ed.2d at p. 771].)

We have engaged in this lengthy discussion of our conclusions with respect to the nature and extent of plaintiffs' potential exposure because this factor is the linchpin of both their complaint and their arguments on appeal.   In explaining its reason for granting summary judgment, the trial court concluded that plaintiffs had failed to establish a triable issue of fact with respect to their claim that they were actually exposed to dangerous levels of radiation.   Plaintiffs contend that in so concluding the trial court usurped the jury's role and itself resolved factual issues.   For the reasons we have explained, we reject this assertion and agree with the trial court's conclusion.   Plaintiffs' claims for damages must be evaluated with the factual predicate that they were not actually exposed to dangerous levels of radiation.

II

Liability Without Excessive Exposure

 Having abandoned any claim for actual injury by exposure to radioactive materials, the primary basis upon which plaintiffs seek recovery is for alleged emotional distress resulting from SMUD's conduct.   Courts have long struggled with the question of when a plaintiff should be permitted to pursue compensation in tort for emotional distress.   One aspect of the problem focuses upon the nature of the plaintiff's interest which has been invaded by the defendant's conduct.  (See Merenda v. Superior Court (1992) 3 Cal.App.4th 1, 7–8, 4 Cal.Rptr.2d 87.)   This particular focus is often encountered in cases where it is disputed whether the plaintiff can recover for emotional distress in addition to other types of damage suffered.   (Id. at pp. 8–9, 4 Cal.Rptr.2d 87.)   In general, damages for emotional distress can be recovered as an element of the plaintiff's award where the primary interest invaded would naturally entail significant emotional distress.  (Id. at p. 8, 4 Cal.Rptr.2d 87.)   Examples include actions for actual physical injury, assault, battery, false imprisonment, and defamation.   (Ibid.)  On the other hand, where the primary interest invaded is economic in character, serious emotional distress is not an inevitable consequence and an award generally may not include damages for emotional distress.   (Id. at p. 10, 4 Cal.Rptr.2d 87.)

 When a plaintiff seeks damages for emotional distress as an element of his recovery for the defendant's negligent conduct, the availability of such an award is determined by reference to the primary injury suffered by the plaintiff.  (Merenda v. Superior Court, supra, 3 Cal.App.4th at pp. 8–9, 4 Cal.Rptr.2d 87.)   For example, personal injuries will naturally entail emotional suffering and an award for negligently caused personal injury may include damages for emotional distress.  (Crisci v. Security Ins. Co. (1967) 66 Cal.2d 425, 433, 58 Cal.Rptr. 13, 426 P.2d 173.)   But an award for negligently caused economic harm, such as in a legal malpractice action, may not include damages for emotional distress.  (Merenda v. Superior Court, supra, 3 Cal.App.4th at pp. 10–11, 4 Cal.Rptr.2d 87.)

This question takes on added dimensions when emotional distress is the only claimed injury.¹⁷  (See generally, 6 Witkin, Summary of Cal. Law (9th ed.1988) Torts, §§ 851–854, pp. 209–217.)   This type of action for emotional distress without impact or injury, described by Witkin as the “borderland of tort liability” (6 Witkin, Summary of Cal. Law, supra, Torts, § 851, p. 209), is based soley upon the disturbance of the plaintiff's emotional tranquility and there is no other “primary interest” which the plaintiff alleges to have been invaded.   This variation on the theme obviously cannot be resolved by considering whether emotional distress is a natural consequence of the invasion of some other primary interest.   Instead, it requires a determination whether the plaintiff's interest in emotional tranquility, under the circumstances of the case, can itself serve as a “primary interest” for compensation purposes.   In this respect, decisional authorities fall into the two broad categories of negligent infliction of emotional distress and intentional infliction of emotional distress.

 Negligent infliction of emotional distress is not an independent tort but is a part of the broader tort of negligence to which the traditional elements of duty, breach of duty, causation and damages apply.  (Christensen v. Superior Court (1991) 54 Cal.3d 868, 884, 2 Cal.Rptr.2d 79, 820 P.2d 181;  Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 588, 257 Cal.Rptr. 98, 770 P.2d 278.)   In considering whether, under the circumstances presented, a plaintiff may recover for the negligent infliction of emotional distress, particular emphasis is placed upon the duty element of the asserted cause of action.   The duty element of such a cause of action is a question of law to be resolved by the court rather than by a jury.  (Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc., supra, 48 Cal.3d at p. 588, 257 Cal.Rptr. 98, 770 P.2d 278.)   “[L]egal duties are not discoverable facts of nature, but merely conclusory expressions that, in cases of a particular type, liability should be imposed for damage done.”  (Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 434, 131 Cal.Rptr. 14, 551 P.2d 334.)   Forseeability of harm is a factor to be weighed along with policy considerations in determining whether the defendant owed a duty of care to the plaintiff.  (Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc., supra, 48 Cal.3d at p. 588, 257 Cal.Rptr. 98, 770 P.2d 278.) ¹⁸  But foreseeability alone is not determinative;  there is no cause of action for negligent infliction of emotional distress based solely upon foreseeability that emotional distress might result from the defendant's conduct.  (Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc., supra, 48 Cal.3d at p. 589, 257 Cal.Rptr. 98, 770 P.2d 278.)

 A legal duty toward a plaintiff may be assumed by the defendant, may be imposed on the defendant as a matter of law, or may arise out of a relationship between the two.  (Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc., supra, 48 Cal.3d at p. 590, 257 Cal.Rptr. 98, 770 P.2d 278.)   But in the absence of particular circumstances showing that the defendant assumed a duty to protect the plaintiff's emotional tranquility or entered into a special relationship with the plaintiff which would naturally give rise to such a duty, recovery for negligent infliction of emotional distress in the absence of physical injury or impact is generally denied.   However, in limited circumstances a legal duty may be imposed upon a defendant with respect to a particular type or class of plaintiff.   The types of plaintiffs who have been permitted to recover fall into the general categories of “bystander” plaintiffs and “direct victims.”  (Thing v. La Chusa (1989) 48 Cal.3d 644, 647, 257 Cal.Rptr. 865, 771 P.2d 814.)   While the limitations may differ with the type of case, the Supreme Court has cautioned that regardless of foreseeability, policy considerations dictate that the right to recover for negligently caused emotional distress must be limited.  (Id. at pp. 663–664, 257 Cal.Rptr. 865, 771 P.2d 814.)  “The merely negligent actor does not owe a duty the law will recognize to make monetary amends to all persons who may have suffered emotional distress on viewing or learning about the injurious consequences of his conduct.”  (Id. at p. 668, 257 Cal.Rptr. 865, 771 P.2d 814.)   It follows then that “[t]he overwhelming majority of ‘emotional distress' which we endure, therefore, is not compensable.”  (Id. at p. 667, 257 Cal.Rptr. 865, 771 P.2d 814.)

In “bystander” situations the defendant's negligence has caused actual harm to someone other than the plaintiff and the question is whether the plaintiff can recover for derivative emotional distress.   The Supreme Court has concluded that the right to seek compensation in such circumstances must be limited to persons who are closely related to the actual victim, are present at the scene of the injury-producing event at the time it occurs and are then aware that it is causing injury to the victim, and suffer serious emotional distress beyond that which would be expected in a disinterested witness and which is not an abnormal response to the circumstances.  (Thing v. La Chusa, supra, 48 Cal.3d at pp. 667–668, 257 Cal.Rptr. 865, 771 P.2d 814.)   This requires personal and contemporaneous perception of the event and its consequences;  the plaintiff cannot base a cause of action upon learning of the event from others.  (Id. at p. 666, 257 Cal.Rptr. 865, 771 P.2d 814.)

Direct victim situations arise where the defendant's conduct is directed at the plaintiff.   For example, in Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 167 Cal.Rptr. 831, 616 P.2d 813, the defendant erroneously diagnosed a woman as having syphilis and told her to inform her husband and have him examined for the disease.   In general a person cannot pursue a cause of action for emotional distress based upon the erroneous diagnosis of a close relative nor for actual injury caused by malpractice where the shock is caused by learning of the accident from others after its occurrence.  (Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc., supra, 48 Cal.3d at pp. 589–590, 257 Cal.Rptr. 98, 770 P.2d 278;  Justus v. Atchison (1977) 19 Cal.3d 564, 585, 139 Cal.Rptr. 97, 565 P.2d 122.)   However, in Molien the defendant had affirmatively acted to have the misdiagnosis communicated to the husband and the nature of the disease was such that the misdiagnosis was certain to implicate the husband's emotional status as well the wife's.  (See Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc., supra, 48 Cal.3d at pp. 589–590, 257 Cal.Rptr. 98, 770 P.2d 278.)   The court concluded that the defendant's conduct was directed at the husband as well as the wife and that under the circumstances the defendant owed a duty to the husband.  (Molien v. Kaiser Foundation Hospitals, supra, 27 Cal.3d at p. 923, 167 Cal.Rptr. 831, 616 P.2d 813;  see Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc., supra, 48 Cal.3d at p. 591, 257 Cal.Rptr. 98, 770 P.2d 278.)   The court has subsequently explained that “direct victim” recovery is limited to situations in which the defendant's negligence is by its very nature directed at the plaintiff.  (Thing v. La Chusa, supra, 48 Cal.3d at p. 660, 257 Cal.Rptr. 865, 771 P.2d 814;  Ochoa v. Superior Court (1985) 39 Cal.3d 159, 172, 216 Cal.Rptr. 661, 703 P.2d 1.)

 In the circumstances presented here we are satisfied that there is no basis for finding a duty on SMUD's part to protect plaintiffs from the type of harm which they allege.   The factors we find determinative are:  (1) no one, including any of the plaintiffs, suffered any actual physical harm as a result of SMUD's conduct;  (2) no one, including any of the plaintiffs, was actually exposed to harmful or legally cognizable levels of radiation;  (3) none of the plaintiffs were percipient witnesses to SMUD's allegedly negligent conduct and none of the plaintiffs had a contemporaneous awareness of the event and its consequences;  (4) in fact, there was no “event” which caused injury;  (5) plaintiffs received the information upon which their claims are based from media reports and other third parties.   Under these circumstances plaintiffs obviously cannot claim damages for emotional distress as “bystanders.”   (Thing v. La Chusa, supra, 48 Cal.3d at pp. 667–668, 257 Cal.Rptr. 865, 771 P.2d 814.)   Nor have they pointed to negligent conduct which by its very nature was affirmatively directed at them within the meaning of the direct victim decisions.  (Christensen v. Superior Court, supra, 54 Cal.3d at pp. 887–888, 900, 2 Cal.Rptr.2d 79, 820 P.2d 181;  Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc., supra, 48 Cal.3d at p. 591, 257 Cal.Rptr. 98, 770 P.2d 278;  Molien v. Kaiser Foundation Hospitals, supra, 27 Cal.3d at p. 923, 167 Cal.Rptr. 831, 616 P.2d 813.)   To recognize a cause of action in the plaintiffs for negligent infliction of emotional distress would be to recognize such a cause of action in virtually anyone who is or has been in arguable proximity to Rancho Seco since 1980 based upon conduct which did not cause any actual injury.   Such broad, virtually unlimited liability would be inconsistent with the policy of the law.  (See Thing v. La Chusa, supra, 48 Cal.3d at p. 668, 257 Cal.Rptr. 865, 771 P.2d 814.)

The recent decision in Christensen v. Superior Court, supra, 54 Cal.3d 868, 2 Cal.Rptr.2d 79, 820 P.2d 181, points to another reason the plaintiffs cannot be permitted to proceed.   There the defendants were mortuaries and crematoria that undertook to provide funeral services for the plaintiffs' decedents.   It was alleged that the defendants engaged in a number of tortious behaviors, including “harvesting” body parts to be sold for profit.   The Supreme Court concluded that by undertaking to provide funeral services a mortuary or crematorium affirmatively undertakes to provide a service whose very purpose is to alleviate existing and avoid future emotional distress arising from a death.  (Id. at p. 899, 2 Cal.Rptr.2d 79, 820 P.2d 181.)   This created a “direct victim” situation which would support a cause of action for the negligent infliction of emotional distress.   However, the class of plaintiffs who could proceed was limited to those close relatives who were aware both of the death of a loved one and of the nature of the funeral-related services that were to be performed on their behalf.  (Id. at p. 900, 2 Cal.Rptr.2d 79, 820 P.2d 181.)

After defining the class of permissible plaintiffs, the court noted another limitation upon the right to recover for negligent infliction of emotional distress—the necessity that the plaintiffs prove a causal connection between the defendants' conduct and their injury.   The court held “that media and other secondhand reports about psychologically devastating events are not a sufficient basis for imposition of liability for emotional distress suffered by persons who are upset thereby.”  (Christensen v. Superior Court, 54 Cal.3d at p. 901, 2 Cal.Rptr.2d 79, 820 P.2d 181.)  “A plaintiff who is unable to establish that he or she suffered severe emotional distress, and that the emotional distress was caused by a well-founded substantial certainty that his or her decedent's remains were among those reportedly mistreated, may not recover damages.   A generalized concern that the remains of a relative may have been involved, arising out of a media report of a pattern of misconduct, is insufficient to satisfy the requirement that there be a direct connection between a defendant's conduct and the injury suffered by the plaintiff.   It does not supply a necessary element—that the injury, here emotional distress, be caused by a breach of the defendant's duty to the particular plaintiff.”   (Id. at p. 902, 2 Cal.Rptr.2d 79, 820 P.2d 181, citations omitted.)

Plaintiffs' showing here is entirely bereft of evidence which would support a finding of cause in fact.¹⁹  Plaintiffs did not witness any of the negligent conduct of SMUD of which they now complain and they were not aware of any “event” which placed them in danger.   They base their claim of emotional distress upon fear of excessive exposure to radioactivity, but that fear was based upon media and other secondhand reports which proved to be unfounded.   Not only were the media reports unfounded, they were contrary to the affirmative assurances of both SMUD and the NRC that there was no cause for alarm.   In these circumstances plaintiffs have not pointed to evidence of a “well-founded substantial certainty” that they were subjected to excessive exposure;  instead they are seeking to recover damages based upon a generalized concern arising out of unfounded secondhand reports.   Such a showing will not support a cause of action for the negligent infliction of emotional distress.  (Christensen v. Superior Court, supra, 54 Cal.3d at pp. 901–902, 2 Cal.Rptr.2d 79, 820 P.2d 181.)

 Plaintiffs also claim the right to recovery based upon the alleged intentional infliction of emotional distress.   In Christensen, the high court held that for recovery for the intentional infliction of emotional distress it is not sufficient that the defendant's conduct be intentional, outrageous, and substantially certain to cause emotional distress.  (54 Cal.3d at p. 903, 2 Cal.Rptr.2d 79, 820 P.2d 181.)   The defendant's conduct must also be directed at the plaintiff with the intent of causing emotional distress or committed in the plaintiff's presence with an awareness of that presence and the substantial certainty that emotional distress will result.   (Id. at pp. 903–906, 2 Cal.Rptr.2d 79, 820 P.2d 181.)  “Past decisions of this court have invariably presupposed that the defendant's misconduct was directed to and was intended to cause severe or extreme emotional distress to a particular individual or, when reckless disregard was the theory of recovery, that the defendant directed his conduct at, and in conscious disregard of the threat to, a particular individual.”  (Id. at p. 903, 2 Cal.Rptr.2d 79, 820 P.2d 181.)   Indeed, “[t]he requirement that defendant's conduct be directed primarily at the plaintiff is a factor which distinguishes intentional infliction of emotional distress from the negligent infliction of such injury.”  (Id. at p. 904, 2 Cal.Rptr.2d 79, 820 P.2d 181.)   When the theory of the case is predicated upon the “reckless disregard” of the plaintiff's interests, it is reasoned that the presence of the plaintiff at the time of the outrageous conduct is an element which establishes a sufficiently high degree of culpability to support the cause of action.  (Id. at p. 906, 2 Cal.Rptr.2d 79, 820 P.2d 181.)   Although plaintiffs characterize SMUD's conduct as outrageous, they have pointed to no evidence to establish that SMUD released legally impermissible levels of radioactive material or that SMUD's other conduct was specifically directed at them with the intent of causing emotional distress or that they were actually present at the commission of outrageous conduct which was substantially certain to cause severe emotional distress.   For these reasons, we conclude that there is no triable issue of material fact concerning plaintiffs' causes of action for personal injury unrelated to property damage and that SMUD is entitled to judgment as a matter of law on those counts.

III

Property Damage

Plaintiffs next assert that they have presented sufficient evidence to entitle them to a trial on trespass, nuisance, and inverse condemnation claims and that damages for emotional distress may be recovered for trespass and nuisance.

 Trespass is an invasion upon the property of another.  “Recovery allowed in prior trespass actions predicated upon noise, gas emissions, or vibration intrusions has, in each instance, been predicated upon the deposit of particulate matter upon the plaintiffs' property or on actual physical damage thereto.”  (Wilson v. Interlake Steel Co. (1982) 32 Cal.3d 229, 232, 185 Cal.Rptr. 280, 649 P.2d 922.)  “Succinctly stated, the rule is that actionable trespass may not be predicated upon nondamaging noise, odor, or light intrusion․”  (Id. at p. 233, 185 Cal.Rptr. 280, 649 P.2d 922.)   Intangible intrusions must be dealt with as nuisance cases rather than trespass.  (Ibid.)

 In support of their trespass claim plaintiffs make the general and unsupported assertion that “the whole area is contaminated.”   In moving for summary judgment SMUD submitted the results of the studies conducted by Oak Ridge, Lawrence Livermore, and EAL which failed to demonstrate the presence of radioactivity of plant origin on land belonging to any of the plaintiffs.   Victor Noshkin, the lead investigator for Lawrence Livermore, submitted a declaration in which he stated that during his three-year participation in the investigation the only irrigated land that showed any radioactivity of plant origin belonged to a person who is not a plaintiff.   Plaintiffs did not present any specific evidence to show actual contamination of their properties.   Since plaintiffs failed to produce evidence of actual damage or physical invasion of their land they have failed to establish a triable issue of fact with respect to trespass.

 We turn then to the nuisance cause of action and begin by recounting the statutory framework.  “Anything which is injurious to health, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street or highway, is a nuisance.”  (Civ.Code, § 3479.)  “Nothing which is done or maintained under the express authority of a statute can be deemed a nuisance.”  (Civ.Code, § 3482.)  “A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.”  (Civ.Code, § 3480.)   “Every nuisance not included in the definition of the last section is private.”  (Civ.Code, § 3481.)  “A private person may maintain an action for a public nuisance if it is specially injurious to himself, but not otherwise.”  (Civ.Code, § 3493.)

 Judicial decisions have added a definitional gloss to these statutory provisions.   The authorities hold that in order for a private party to maintain an action based upon a public nuisance he or she must prove special damage different in kind and not merely degree from that suffered by other members of the populace.  (Institoris v. City of Los Angeles (1989) 210 Cal.App.3d 10, 21, 258 Cal.Rptr. 418;  Brown v. Petrolane, Inc. (1980) 102 Cal.App.3d 720, 725–726, 162 Cal.Rptr. 551;  Venuto v. Owens–Corning Fiberglas Corp. (1971) 22 Cal.App.3d 116, 124–125, 99 Cal.Rptr. 350.)   A nuisance may be both public and private, but to proceed on a private nuisance theory the plaintiff must prove an injury specifically referable to the use and enjoyment of his or her land.   Without such a showing the fact of personal injury, or the interference with a purely personal right, does not establish a nuisance.  (Ibid.)  And in general fear or anxiety arising from the existence of a facility or plant will not support a cause of action for nuisance.  (Brown v. Petrolane, Inc. (1980) 102 Cal.App.3d 720, 726, 162 Cal.Rptr. 551.)

 Civil Code section 3482, which precludes that which is authorized by statute from being considered a nuisance, has been narrowly construed.   It exempts only those acts which are authorized expressly or may be implied from the powers conferred by the plainest and most necessary implication.  (Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 291, 142 Cal.Rptr. 429, 572 P.2d 43.)   In the application of this rule it has been held that while a specific activity may be authorized and immune from being considered a nuisance, the activity may yet be performed in a manner which is not immune.  (Greater Westchester Homeowners Assn. v. City of Los Angeles (1979) 26 Cal.3d 86, 101, 160 Cal.Rptr. 733, 603 P.2d 1329.)   But in such cases a plaintiff cannot predicate a nuisance case upon the mere existence of a facility or activity which is statutorily authorized or upon anxiety caused by mere knowledge of its presence.  (Varjabedian v. City of Madera, supra, 20 Cal.3d at p. 292, 142 Cal.Rptr. 429, 572 P.2d 43;  Venuto v. Owens–Corning Fiberglas Corp., supra, 22 Cal.App.3d at p. 129, 99 Cal.Rptr. 350.)

 Plaintiffs have not presented evidence to show an actual physical invasion or damage to themselves or their properties.   They have not shown that SMUD released legally excessive levels of radioactive materials or that they were exposed to harmful and legally cognizable levels of radiation on their properties.   The claim of nuisance is based upon alleged fear and anxiety from the operation of Rancho Seco.   To the extent such fear and anxiety is based upon the mere existence and operation of a nuclear power plant it will not support a claim for nuisance since that activity is legally sanctioned.  (Civ.Code, § 3482;  Varjabedian v. City of Madera, supra, 20 Cal.3d at p. 292, 142 Cal.Rptr. 429, 572 P.2d 43.)   Moreover, such things as fear, anxiety, and emotional distress which are not caused by an interference with a specific private property right and which are common to the general population will not support a private action for nuisance.  (Brown v. Petrolane, Inc., supra, 102 Cal.App.3d at pp. 725–726, 162 Cal.Rptr. 551;  Venuto v. Owens–Corning Fiberglas Corp., supra, 22 Cal.App.3d at pp. 124–125, 99 Cal.Rptr. 350.)   Plaintiffs' showing fails to demonstrate a triable issue of fact with respect to claims of nuisance.

 Inverse condemnation is a remedy available to a property owner when a governmental activity has taken or damaged his property.   Inverse condemnation will not subject a governmental entity to general tort liability;  rather, it applies only where there is damage to property which has proximately resulted from the maintenance and use of a public improvement as deliberately planned and constructed.  (Souza v. Silver Development Co. (1985) 164 Cal.App.3d 165, 170, 210 Cal.Rptr. 146;  McMahan's of Santa Monica v. City of Santa Monica (1983) 146 Cal.App.3d 683, 694, 194 Cal.Rptr. 582.)   Inverse condemnation is not available as a remedy for damage to intangible interests.  (Hladek v. City of Merced (1977) 69 Cal.App.3d 585, 588–589, 138 Cal.Rptr. 194;  Peerless Stages, Inc. v. Santa Cruz Met. Transit Dist. (1977) 67 Cal.App.3d 343, 347, 136 Cal.Rptr. 567.)   Thus inverse condemnation is generally limited to cases of actual physical damage to property.  (Holtz v. Superior Court (1970) 3 Cal.3d 296, 303–304, 90 Cal.Rptr. 345, 475 P.2d 441.)   However, the purpose of inverse condemnation is to avoid forcing an individual property owner to bear a disproportionate share of the burden of a public enterprise.   Accordingly, if a property owner can establish that his property has suffered such a direct, substantial and peculiar burden that he has been “in effect ‘singled out’ to suffer the detrimental environmental effects of the enterprise” then he can pursue an action for inverse condemnation.  (Varjabedian v. City of Madera, supra, 20 Cal.3d at pp. 298–299, 142 Cal.Rptr. 429, 572 P.2d 43.) ²⁰

Plaintiffs have not shown any actual injury to their properties.   Nor have they attempted to show that the property of any particular plaintiff suffered such a direct, substantial and peculiar burden as to have effectively been singled out to bear the burden of the public enterprise.   In fact, their claims are quite to the contrary—they assert that virtually everyone within a vast geographical area has been adversely affected by the operations at Rancho Seco.   Plaintiffs have failed to establish the requisites for recovery on an inverse condemnation theory.

 While for these reasons we conclude that plaintiffs have failed to establish a triable issue of fact with respect to their claims for trespass, nuisance and inverse condemnation, there is another failure in their showing which is common to each claim.   Trespass, nuisance and inverse condemnation are each based upon an interference or damage to a property interest.   None of these causes of action can be supported by evidence of the violation of a personal interest.   Thus emotional distress, standing alone, will not support an action for trespass, nuisance or inverse condemnation.   Plaintiffs have not shown actual injury to their properties;  rather, their claims of property damage are based upon alleged diminution in property values.

In moving for summary judgment SMUD submitted the declaration of Richard Wolcott, a real property appraiser.   He had studied real property transactions which had occurred in the vicinity of Rancho Seco from 1975 through 1990.²¹  He found a steady increase in property values in the study area which displayed no unusual or significant dips or peaks and which paralleled national, state, and local trends.   A number of the plaintiffs had actually sold their properties since the commencement of this litigation and the sales prices obtained were consistent with the general upward trend in property values and did not demonstrate a diminution in value attributable to Rancho Seco.

In support of their claims of diminished market value plaintiffs relied upon the declaration of Frank LaBella, Jr., a real estate appraiser.   He opined that plaintiffs' properties had suffered diminution in value of 75 to 80 percent.   However, LaBella based his analysis upon the assumption that plaintiffs' claims of excess contamination were true.   In addition, he admitted that none of the three traditional methods of valuing property, the market sales approach, the income approach, or the cost of replacement approach, supported his conclusion.   In particular, he admitted that consideration of comparable sales did not support his opinion.   And the fact that the plaintiffs who had actually sold their properties suffered no diminution in sales price further undermined his view.   LaBella disregarded these factors by assuming that the sellers were not making full disclosure to prospective buyers.   He did not make inquiry to determine whether that was indeed the situation.   And in fact deposition testimony and sales documents show that many of the plaintiff-sellers received full value for their properties despite making disclosure.

 We conclude that LaBella's declaration is not competent evidence of value.  (See Pacific Gas & Electric Co. v. Zuckerman, supra, 189 Cal.App.3d at pp. 1135–1136, 234 Cal.Rptr. 630.)   First, an expert's opinion which is based upon assumptions which are not supported by the record is not entitled to evidentiary value.  (Ibid.)  LaBella's opinion falls with plaintiffs' failure to provide proof of their claim of excess contamination.   Second, in his opinion LaBella chose to ignore traditional and legally approved measures of market value (Evid.Code §§ 815–820), in favor of his view that prospective buyers should be more concerned with the proximity of Rancho Seco than actual sales data would indicate that they are.   Plaintiffs are correct in their assertion that the fear of danger from a nearby facility may affect market value regardless of the scientific merit of such fear.  (San Diego Gas & Electric Co. v. Daley (1988) 205 Cal.App.3d 1334, 1349, 253 Cal.Rptr. 144.) ²²  However, for public fear to be relevant it must be sufficiently widespread that it actually influences the price at which property can be sold, and hence market value.  (Id. at p. 1347, 253 Cal.Rptr. 144.)   An expert cannot be permitted to disregard evidence that market value has not suffered in favor of his own opinion that buyers are not as concerned as they ought to be.   Finally, in offering an opinion on market value an expert cannot be permitted to rely upon the influence of any noncompensable items of value, damage, or injury.  (Evid.Code, § 822, subds. (a)(5), (b);  Sacramento & San Joaquin Drainage Dist. v. Goehring (1970) 13 Cal.App.3d 58, 65, 91 Cal.Rptr. 375;  People ex rel. Dept. Pub. Wks. v. Curtis (1967) 255 Cal.App.2d 378, 393, 63 Cal.Rptr. 138 (conc. opn.).)   In offering his opinion LaBella disregarded evidence that market value had not actually been diminished in favor of his own opinion that value should have been diminished based upon factors which are otherwise noncompensable.   LaBella's opinion cannot be accepted as evidence of an actual diminution in market value.   In sum, there being no triable issue of fact concerning the causes of action seeking property damages and related damages, the trial court correctly granted summary judgment as to them.

IV

Intentional Misrepresentation

 Plaintiffs finally assert that SMUD is liable to them for intentional misrepresentation.   To the extent this contention is based upon alleged misrepresentations which occurred after the commencement of this action it is beyond the scope of the pleadings and cannot be considered.   (California etc. Co. v. Schiappa–Pietra, supra, 151 Cal. at p. 742, 91 P. 593;  AARTS Productions, Inc. v. Crocker National Bank, supra, 179 Cal.App.3d at p. 1065, 225 Cal.Rptr. 203.)   In any event, it would be anomalous to conclude that plaintiffs could justifiably rely upon SMUD's representations of safety at the same time they were pursuing an action alleging the dangerous nature of the activities and misrepresentation of safety concerns.  (Wilhelm v. Pary, Price, Williams & Russell (1986) 186 Cal.App.3d 1324, 1332, 231 Cal.Rptr. 355.)   To the extent this contention is based upon conduct prior to the commencement of this action plaintiffs have failed to produce evidence of actual consequential damages from reliance upon SMUD's representations by failing to produce evidence that they or their properties were actually exposed to harmful and legally cognizable levels of radiation.  (Agnew v. Parks (1959) 172 Cal.App.2d 756, 768, 343 P.2d 118;  Gonsalves v. Hodgson (1951) 38 Cal.2d 91, 101, 237 P.2d 656.) ²³

V

Summary

In summary, it is apparent that each of the causes of action asserted by plaintiffs is based upon the claim that they were subjected to excessive exposure to radiation due to SMUD's releases of radioactive materials from Rancho Seco.   The result of exhaustive studies by independent laboratories hired by SMUD and the NRC established that no one, including any of the plaintiffs, was actually exposed to dosages of radiation which were more than a small fraction of the NRC and EPA standards.   Accepted scientific risk estimates establish that such exposure levels present risk at very low, even minuscule levels.   Plaintiffs have pointed to no competent evidence to establish that they were actually exposed to greater dosage levels or that they face a substantial likelihood of future harm from their exposure.   We have therefore concluded that plaintiffs have failed to present a triable issue of fact with respect to their claim of legally cognizable exposure.   For the reasons we have explained, that failure is fatal to all of the causes of action in the complaint.   Accordingly, we conclude that the trial court was correct in granting summary judgment in favor of SMUD.

DISPOSITION

The judgment is affirmed.

FOOTNOTES

1.   In our discussion of the principles and terminology of radioactivity we borrow unabashedly from the article entitled Radiation Injury and the Law by David S. Gooden, printed in the 1989 Brigham Young University Law Review at page 1155 (hereafter referred to as Gooden), and from the opinion prepared by District Judge Patrick F. Kelly in Johnston v. United States (Kan.1984) 597 F.Supp. 374 (hereafter Johnston).   The scientific principles, terminology and formulae which are involved in radiation and its effects on persons and property are complicated, do not translate easily into measures of common understanding, and implicate several discrete specialties of scientific expertise.   In litigation this creates a prime opportunity for would-be experts to obfuscate the issues and to confuse a court or jury.  (See Gooden, supra, at pp. 1179–1180;  Johnston, supra, 597 F.Supp. at pp. 394, 401, 410–411.)   Our explication here is not intended, and indeed could not serve, as a primer on the principles of radiation injury.   We simply endeavor to provide an elementary description of the principles and terminology involved in order to facilitate further discussion.

2.   High-level exposure to radiation can cause well-recognized and relatively immediate clinical effects, including death.   The levels of exposure required to cause such acute injuries are thousands, even tens of thousands, times any arguable exposure involved in this litigation.  (See Gooden, supra, at pp. 1191–1193.)   Studies have shown a statistically significant increase in cancer rates at lower-level exposures.   However, the exposure levels at which a statistically significant correlation is shown are still thousands of times any arguable exposure in this case.   (See Gooden, supra, at p. 1191;  Johnston, supra, 597 F.Supp. at p. 392.)   In the trial court plaintiffs stipulated that no plaintiff was making a claim based upon actual physical injury due to radiation exposure and the trial court dismissed all such exposure claims.

3.   Groups which have studied and reported upon radiation injury with a view toward regulation of the nuclear industry include the National Council of Radiation Protections and Measurements (NCRP), the International Commission on Radiation Units and Measurements (ICRU), the International Commission of Radiological Protection (ICRP), the United Nations Scientific Committee on the Effects of Atomic Radiation (UNSCEAR), and the National Academy of Sciences Committee on the Biological Effects of Ionizing Radiation (BEIR).  (Id. at p. 392.)   The literature and authorities on the legal aspects of alleged radiation exposure and injury contain frequent reference to the publications of these committees.

4.   The Atomic Energy Commission (AEC) was created in 1946, and until 1954 the use, control, and ownership of nuclear technology remained a federal monopoly.  (Id. at pp. 206–207 [103 S.Ct. at pp. 1723, 1724, 75 L.Ed.2d at pp. 766–767].)   In 1954, Congress determined to encourage private construction, ownership and operation of nuclear power plants, but reserved the exclusive jurisdiction to regulate nuclear safety to the AEC.  (Ibid.)  In 1974 the AEC was abolished and the regulatory duties of the AEC were assigned to the NRC.  (Energy Reorganization Act of 1974, 42 U.S.C. §§ 5801, 5845.)   Several other federal agencies have been created or permitted to study and make recommendations upon the use and regulation of nuclear energy.  (See Hansen, Development and Application of Radiation Protection Standards (1975) 12 Idaho L.Rev. 1.)

5.   The permissible dose limitations for members of the public are 200 times lower than those applicable to employees of a nuclear facility.   (10 C.F.R. § 20.101 (1991) et seq.;   see Johnston, supra, 597 F.Supp. at p. 392.)   The NRC has noted that its regulatory limitations have been conservatively set to incorporate a significant safety factor so that substantial injury or damage should not occur unless exposure exceeds those limits by a significant multiple.  (10 C.F.R. § 140.81(b)(1) (1991).)   The dose limitations for a member of the public are considerably more conservative than those for nuclear workers.   In this case we are not concerned with nuclear workers and thus our discussion will focus entirely upon the standards applicable to members of the public.

6.   With respect to certain radioactive materials the state has entered into an agreement with the federal government for the transfer of regulatory authority to the state.  (Health & Saf.Code, § 25875.)   In the exercise of this authority the Department of Health Services has promulgated radiation protection standards.   The state standard for permissible exposure levels in uncontrolled areas is two millirem in any one hour, one hundred millirem in any consecutive seven days, or one-half rem (500 millirem) in any one year.  (Cal.Code Regs., tit. 17, § 30268.)   This standard is considerably less restrictive than the NRC standard for nuclear power plants, however, nuclear power generation is an area which remains under federal rather than state control.  (Health & Saf.Code, § 25876.)

7.   Plaintiffs assert that proof that SMUD violated the appendix I guidelines would entitle them to a negligence per se instruction at trial under Evidence Code section 669.   They are wrong.   The negligence per se rule established in Evidence Code section 669 applies only if the defendant has violated a regulation which was intended to protect a class of persons of which the plaintiff is a member against the type of harm which was suffered.  (Sierra–Bay Fed. Land Bank Assn. v. Superior Court (1991) 227 Cal.App.3d 318, 336, 277 Cal.Rptr. 753.)   Since NRC regulations specifically provide that the appendix I guidelines are not radiation protection standards, Evidence Code section 669 has no application.

8.   The calculation of the dose to the hypothetical maximally exposed individual under appendix I relies upon certain assumptions.   These assumptions may vary with the type of facility involved.   For example, Rancho Seco is a dry site, meaning that it is not located near an ocean or other large body of water which would aid in dilution and dispersal of released radionuclides and which would tend to reduce the potential exposure to an individual.   Reliance upon dilution factors applicable to other types of facilities would tend to understate appendix I dose values.   Accordingly, appendix I calculations must be based upon assumptions which are relevant to the specific facility and where actual information is available the actual information should be used.

9.   The health physicist also discovered problems associated with dose calculations from airborne effluents.   Further investigation, however, resolved those questions to the satisfaction of all concerned.

10.   Plaintiffs sought to proceed as a class action but certification as a class was denied.   By stipulation two actions were combined and this action is now proceeding on behalf of more than 200 named plaintiffs.   The plaintiffs represent a broad spectrum of persons with asserted exposure to Rancho Seco.   Some of the plaintiffs merely visited property in the area while others are landowners and/or residents.   The lands involved are widely dispersed in Sacramento and other counties.   Some of the lands involved are located considerable distances from both Rancho Seco and the creek system into which SMUD discharged liquid effluents.

11.   Code of Civil Procedure section 437c, subdivision (e) provides:  “If a party is otherwise entitled to a summary judgment pursuant to this section, summary judgment shall not be denied on grounds of credibility or for want of cross-examination of witnesses furnishing affidavits or declarations in support of the summary judgment, except that summary judgment may be denied in the discretion of the court, where the only proof of a material fact offered in support of the summary judgment is an affidavit or declaration made by an individual who was the sole witness to that fact;  or where a material fact is an individual's state of mind, or lack thereof, and that fact is sought to be established solely by the individual's affirmation thereof.”

12.   The expertise of the witnesses relied upon by SMUD is not subject to doubt.   These witnesses include Dr. John Auxier, Dr. Constantine Maletskos, and Dr. Jacob Fabrikant, who are among the most widely known and respected authorities in their fields.  (See Johnston, supra, 597 F.Supp. at pp. 392, 418, 420.)   Of course, with respect to even the most qualified expert the value of the evidence rests not in the conclusion reached but in the factors considered and the reasoning employed.  (Pacific Gas & Electric Co. v. Zuckerman (1987) 189 Cal.App.3d 1113, 1135, 234 Cal.Rptr. 630.)   In setting forth their conclusions the experts relied upon by SMUD were careful to note the information they relied upon and the methodology they employed.   Lest there be any doubt, we do not suggest that the opinions of these experts would support summary judgment in the face of competent contrary evidence.   But in considering a motion for summary judgment a court must first satisfy itself that the moving party has presented evidence that would support a judgment in its favor.   As we have noted, the subjects involved here are particularly vulnerable to expert obfuscation.  (P. 789, fn. 1, supra.)   That was not the case with the presentation of SMUD's experts.

13.   Plaintiffs' witnesses asserted in particular that SMUD's witnesses failed to consider the effect of tritium, a beta-emitting isotope.   Beta rays are like alpha rays in that they consist of particles, but the particles are much smaller and have less potential for causing damage.   Beta rays also have far less penetrating power than gamma rays and will be stopped by normal clothing or the thickness of human skin.   (See Johnston, supra, 597 F.Supp. at p. 384.)   NRC dosage guidelines distinguish between beta radiation and gamma radiation.   And beta-emitting tritium is treated differently than gamma-emitting isotopes under NRC regulations and Rancho Seco's technical specifications.   For example, the guidelines with respect to the total quantities of radioactive materials that may be stored or released are exclusive of tritium.   And while dilution of water containing gamma-emitting particles does not resolve issues with respect to the release of such materials, dilution is a factor with respect to the release of tritium.   There is nothing in the record to suggest any excess release or other irregularity in SMUD's treatment of tritium.

14.   The BIER and UNSCEAR committees (see p. 792, fn. 3, supra), have calculated that the lifetime risk of fatal cancer from a continuing annual dose of 1 millirem is .000035, and the risk from a continuing annual dose of 10 millirems is .00035.   This is based upon the linear hypothesis which predicts that risk is proportionally related to level of dose.

15.   Plaintiffs' other experts did not support Dr. Stewart's views in this respect.   Dr. Kirsch only disagreed that the linear hypothesis will overestimate risk, she did not assert that it would underestimate risk.   Dr. Finston said that he would rely upon the BEIR committee reports in evaluating risk, which endorses the linear hypothesis.   Dr. Tsipis admitted he is not an expert on the subject and only said that he expects levels of exposure regarded as safe to be lowered in the future.

16.   Despite the language of Civil Code section 3283, the rule does not require absolute certainty that future harm will result.   However, there must be evidence from which the fact finder could conclude that future harm is reasonably certain to occur for the potential of future harm to be compensable.  (Khan v. Southern Pac. Co. (1955) 132 Cal.App.2d 410, 416–417, 282 P.2d 78;  Bauman v. San Francisco, supra, 42 Cal.App.2d at pp. 163–165, 108 P.2d 989;  Riggs v. Gasser Motors (1937) 22 Cal.App.2d 636, 640, 72 P.2d 172;  Cordiner v. Los Angeles Traction Co. (1907) 5 Cal.App. 400, 405, 91 P. 436.)   Scientifically accepted risk estimates, and in fact even plaintiffs' “fringe” risk estimates, of the likelihood of future harm from the low levels of exposure involved here place the risk of future harm at such low, even minuscule, levels that they cannot support a claim that future harm is reasonably certain, nor even reasonably likely, to occur.

17.   With respect to some causes of action, such as assault and battery, false imprisonment, and defamation, emotional suffering may constitute the principal element of the plaintiff's damages.  (State Rubbish etc. Assn. v. Siliznoff (1952) 38 Cal.2d 330, 338, 240 P.2d 282.)   Nevertheless, these causes of action are intended to protect primary interests other than the interest in emotional tranquility, such as the plaintiff's interests in bodily integrity, freedom, and his good name.   Thus, the propriety of an award for emotional distress may be determined by reference to the primary interest invaded.

18.   If the duty question is resolved favorably to the plaintiff, then foreseeability of harm becomes part of the factual matrix submitted to the jury to be considered in determining whether the defendant was negligent and whether such negligence was a substantial cause of the plaintiff's injury.   The jury's factual consideration of foreseeability is fact specific to the particular case.   The court's consideration of foreseeability in resolving the duty question is more general.   A court must consider whether the category of negligent conduct is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed.  (Ballard v. Uribe, supra, 41 Cal.3d at pp. 572–573, fn. 6, 224 Cal.Rptr. 664, 715 P.2d 624.)

19.   Plaintiffs commenced this action in 1985 and their showing must relate to facts in existence and known to them at that time.   (California etc. Co. v. Schiappa–Pietra (1907) 151 Cal. 732, 742, 91 P. 593.)   Obviously conduct of the defendant which had not even occurred at the time they commenced this action cannot have caused the emotional distress they claimed in their complaint.   And conduct which was not discovered until years after the commencement of litigation through the continuing investigation of the NRC cannot have caused the emotional distress they claimed at that time.   Such matters are not within the scope of the pleadings and cannot establish a triable issue of material fact.   (AARTS Productions, Inc. v. Crocker National Bank, supra, 179 Cal.App.3d at p. 1065, 225 Cal.Rptr. 203.)

20.   The question whether an inverse taking has occurred is a nonjury question for the court to determine.  (Redevelopment Agency v. Tobriner (1984) 153 Cal.App.3d 367, 376, 200 Cal.Rptr. 364.)   Thus, even if plaintiffs had presented sufficient evidence to support their claim, they would not be entitled to the jury trial they desire with respect to this aspect of their complaint.   However, they would be entitled to a court trial on the taking issue with a jury assessment of compensation if they successfully established a taking.  (Ibid.)  The taking question can be resolved summarily only if there is no triable issue of fact presented.

21.   The statute of limitations for trespass or injury to real property is three years.  (Code Civ.Proc., § 338, subd. (b), formerly subd. (2).)  This includes actions for nuisance (Kafke v. Bozio (1923) 191 Cal. 746, 751, 218 P. 753), as well as inverse condemnation based upon damage to property (Smith v. City of Los Angeles (1944) 66 Cal.App.2d 562, 586, 153 P.2d 69).   The statute of limitations has long since run on any diminution in property value attributable solely to the construction and operation of a nuclear power plant in the vicinity of plaintiffs' property.   Even if plaintiffs' claims were otherwise supportable, their damages would be limited to the loss in value attributable to events in the three years preceding the filing of their complaint.

22.   There are, of course, limitations upon the role that alleged public fear could otherwise play in this case.   First, since the statute of limitations has long since run on claims based upon the construction of Rancho Seco as a nuclear power plant, the effect of alleged public fear cannot be based upon the mere existence and operation of a nuclear power plant in the vicinity, rather, the only fear which could be considered would be that generated by activities within the three years preceding the commencement of this action.   Second, general tort rules would apply and thus consideration of public apprehension would be limited to that fear which was proximately caused by SMUD's conduct rather than by other factors such as unfounded media reports.

23.   We do not imply that plaintiffs have otherwise made a sufficient showing of the elements of intentional misrepresentation, which include a false statement, known to be false, made for the purpose inducing the plaintiffs to act to their detriment in reliance upon such statement, and actual detrimental reliance upon the statement.  (Cicone v. URS Corp. (1986) 183 Cal.App.3d 194, 200, 227 Cal.Rptr. 887.)

SPARKS, Acting Presiding Justice.

MARLER and DAVIS, JJ., concur.