By Marcus Friedman
On December 3, 2019, the United States District Court for the Southern District of California issued an order in Public Watchdogs v. Southern California Edison Company, Case No. 19-CV-1635 JLS (MSB) (S.D. Cal. 2019), (1) granting defendant’s motion to dismiss, (2) dismissing Plaintiff’s first amended complaint with prejudice, and (3) denying Plaintiff’s motion for a preliminary injunction. The Court held it lacks subject-matter jurisdiction as to all of Plaintiff’s causes of action, and the Plaintiff fails to allege proper facts.
Public Watchdogs, a non-profit corporation that advocates for public safety, filed a complaint, motion for a temporary restraining order, and motion for a preliminary injunction on August 29 and 30, 2019 alleging federal Administrative Procedures Act and state nuisance and strict product liability violations against Defendants Southern California Edison Company (Edison), San Diego Gas & Electric (SDG&E), Sempra Energy (Sempra), Holtec International (Holtec), and the United States Nuclear Regulatory Commission (NRC) pertaining to their respective roles in the decommissioning of the defunct San Onofre Nuclear Generating Station (SONGS). Plaintiff alleges that the Defendants are risking the lives of millions of California residents and the prospect of irreparable harm to the environment by removing spent nuclear fuel from a storage location specifically designed and used for that purpose for decades, transporting it into canisters that are damaged, defective, and not adequately designed to serve their intended purpose, and dropping it into holes a mere 108 feet from one of California’s most populated public beaches, within a tsunami zone, surrounded by active fault lines.
In seeking to enjoin the Defendants from proceeding with this plan, Plaintiff also alleges multiple instances of poor safety and regulatory compliance at the SONGS facility; faulty canister design changes without NRC authorization; poor oversight over the operation by the NRC; and two incidents in which the Utility Defendants lost control of two 49-ton canisters containing deadly radioactive nuclear waste since the burial of nuclear waste began on January 31, 2018, in support of their argument that the possibility of irreparable harm should the plan go forward is not speculative.
In denying the motion for a preliminary injunction and dismissing the complaint, the District Court agreed with Defendants that all of Plaintiff’s claims were incidental to the NRC’s final licensing and certification decisions regarding spent fuel storage at SONGS. Therefore, original jurisdiction to review such NRC licensing activity is vested exclusively with the Ninth Circuit Court of Appeals under the Hobbs Act. It also found that Plaintiff failed to state facts to state a plausible claim for relief, and thus it failed to meet the standard for a preliminary injunction that it had a likelihood of success on the merits.
On December 31, 2019, Public Watchdogs filed a notice of appeal with the Ninth Circuit, and on January 27, 2020, the Ninth Circuit granted its request for an expedited briefing schedule.
On January 21, 2020, Public Watchdogs also filed a parallel supplemental petition to the NRC requesting the NRC to immediately suspend all nuclear waste burial operations at SONGS. Specifically, plaintiffs state (1) the recent events confirm the licensees cannot ensure their financial ability to pay for the total cost of decommissioning and long term spent fuel management, (2) the licensees are violating NRC regulations by burying spent nuclear fuel at SONGS in a storage system that does not allow for ready retrieval of the fuel, and (3) the SONGS on-site burial process is operating in an unanalyzed condition.
On February 25, 2020, the NRC issued an inspection report, stating that within the scope of the inspection, no violations were identified at SONGS.