Judge Likely to Dismiss SONGS Lawsuit

Shawn Raymundo, Dana Point Times

A federal judge is likely to rule against Public Watchdogs, dismissing its lawsuit against the operators of the San Onofre power plant, in large part because the judge may not have jurisdiction over the issue.

Attorneys representing both parties got to argue at the U.S. District Courthouse in San Diego on Monday, Nov. 25, after Judge Janis Sammartino announced that she’s tentatively inclined to dismiss the case.

The potential dismissal would deny the nonprofit advocacy group’s motion for an injunction to halt the decommissioning of the San Onofre Nuclear Generating Station (SONGS), pausing the transfer of Southern California Edison’s (SCE) nuclear waste into its dry storage facility.

Sammartino noted that Public Watchdogs currently has related matters pending with the U.S. Ninth Circuit Court of Appeals and the Nuclear Regulatory Commission (NRC)—the federal government’s independent regulatory arm on nuclear energy

“What’s a district court judge to do?” Sammartino asked near the outset of Monday’s hearing. She added: “I’ve spent a lot of time reading everything … but how could I possibly make a decision today on this case with so many matters around?”

According to Sammartino, all three pending matters seek the same relief—the immediate suspension of removing the power plant’s spent nuclear fuel from the wet pools within Edison’s containment domes into dry storage.

Public Watchdogs, which has vehemently opposed Edison’s handling of nuclear waste at the plant in the belief the storage system is inadequate, filed its District Court lawsuit in August. In its suit, the group lobs several allegations against SCE and its contractor, Holtec International, which built the canisters for the spent fuel.

In September, the advocacy group also filed a “2.206” petition with the NRC, challenging its licenses allowing the decommissioning at SONGS that were approved in 2015.

The following month, the group filed a motion to intervene, asking the Ninth Circuit Court to order the NRC to fulfill its duty of addressing the petition.

“Unless the NRC temporarily suspends decommissioning, all of this highly radioactive material will be buried before the NRC or this Court considers the merits of the 2.206 Petition,” Public Watchdogs said in its Ninth Court filing.

Eric Beste, Public Watchdogs’ attorney, told Sammartino on Monday that they filed the Ninth Circuit case because the NRC “has not taken any action on our petition, has not given any indication on taking a position, essentially running out the clock.”

The group, Beste said, is essentially “asking the Ninth Circuit to order the NRC to do its job.” He also claimed that the NRC has never taken an action on a 2.206 petition—a statement NRC legal counsel Valerie Torres later disputed.

“That’s inaccurate . . . the NRC has granted petitions in the past,” Torres said, also stating the agency would be happy to show they’ve acted on previous petitions

While Beste acknowledged that there is some overlap between the three venues of litigation, the question before the Ninth Circuit is focused on whether the NRC is “acting with adjudicating speed … and if not, then it is subject to a (writ of) mandamus.”

WHAT’S NEXT: It was unclear Monday when Sammartino intends to issue her ruling. As of Wednesday morning, no ruling had been filed with the court.—Shawn Raymundo

THE LATEST: A federal judge is likely to rule against Public Watchdogs, dismissing its lawsuit against the operators of the San Onofre power plant, in large part because the judge may not have jurisdiction over the issue.

Attorneys representing both parties got to argue at the U.S. District Courthouse in San Diego on Monday, Nov. 25, after Judge Janis Sammartino announced that she’s tentatively inclined to dismiss the case.

The potential dismissal would deny the nonprofit advocacy group’s motion for an injunction to halt the decommissioning of the San Onofre Nuclear Generating Station (SONGS), pausing the transfer of Southern California Edison’s (SCE) nuclear waste into its dry storage facility.

Sammartino noted that Public Watchdogs currently has related matters pending with the U.S. Ninth Circuit Court of Appeals and the Nuclear Regulatory Commission (NRC)—the federal government’s independent regulatory arm on nuclear energy

“What’s a district court judge to do?” Sammartino asked near the outset of Monday’s hearing. She added: “I’ve spent a lot of time reading everything … but how could I possibly make a decision today on this case with so many matters around?”

According to Sammartino, all three pending matters seek the same relief—the immediate suspension of removing the power plant’s spent nuclear fuel from the wet pools within Edison’s containment domes into dry storage.

Public Watchdogs, which has vehemently opposed Edison’s handling of nuclear waste at the plant in the belief the storage system is inadequate, filed its District Court lawsuit in August. In its suit, the group lobs several allegations against SCE and its contractor, Holtec International, which built the canisters for the spent fuel.

In September, the advocacy group also filed a “2.206” petition with the NRC, challenging its licenses allowing the decommissioning at SONGS that were approved in 2015.

The following month, the group filed a motion to intervene, asking the Ninth Circuit Court to order the NRC to fulfill its duty of addressing the petition.

“Unless the NRC temporarily suspends decommissioning, all of this highly radioactive material will be buried before the NRC or this Court considers the merits of the 2.206 Petition,” Public Watchdogs said in its Ninth Court filing.

Eric Beste, Public Watchdogs’ attorney, told Sammartino on Monday that they filed the Ninth Circuit case because the NRC “has not taken any action on our petition, has not given any indication on taking a position, essentially running out the clock.”

The group, Beste said, is essentially “asking the Ninth Circuit to order the NRC to do its job.” He also claimed that the NRC has never taken an action on a 2.206 petition—a statement NRC legal counsel Valerie Torres later disputed.

“That’s inaccurate . . . the NRC has granted petitions in the past,” Torres said, also stating the agency would be happy to show they’ve acted on previous petitions

While Beste acknowledged that there is some overlap between the three venues of litigation, the question before the Ninth Circuit is focused on whether the NRC is “acting with adjudicating speed … and if not, then it is subject to a (writ of) mandamus.”

It was unclear Monday when Sammartino intends to issue her ruling. As of Wednesday morning, no ruling had been filed with the court.