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By Shawn Raymundo
A nonprofit advocacy group’s lawsuit seeking to halt the transfer of nuclear waste at the San Onofre Nuclear Generating Station (SONGS) was dismissed in federal court on Tuesday, Dec. 3, as a judge ruled that the court didn’t have jurisdiction to preside over the case.
Judge Janis Sammartino dismissed the lawsuit brought by Public Watchdogs, granting Southern California Edison’s motion to have the case removed on the grounds that the nonprofit “failed to state a plausible claim for relief” and, therefore, “is unlikely to succeed on the merits.”
Public Watchdogs filed its federal lawsuit against Edison, the majority owner of SONGS, and minority stakeholder San Diego Gas & Electric in August. Holtec International, which designed the canisters used to transport and contain spent nuclear fuel, and the Nuclear Regulatory Commission (NRC) were also named in the suit.
In an emailed statement from John Dobken, Edison’s public information officer, the company is pleased with the outcome of the case.
“The court’s decision, which further prohibits the plaintiff from seeking to resubmit their claims in the court, allows SCE to continue moving spent nuclear fuel into a safe storage system,” Edison said.
Public Watchdogs Executive Director Charles Langley told San Clemente Times on Wednesday, Dec. 4, that the group has asked its legal counsel to evaluate an appeal.
“We believe the case has merit and that the evidence should be heard in a court of law,” Langley said in an email. “In our opinion, the Nuclear Regulatory Commission has failed to protect the public from a potential nuclear waste disaster at San Onofre. The court did not dispute the facts or the dangers. Instead it dismissed the case for jurisdictional reasons.”
The nonprofit, which has taken issue with Edison’s handling of the waste at the power plant, sought a preliminary injunction to cease the transfer operations of fuel from the plant’s wet pools into dry storage.
SONGS was decommissioned in 2013. Since then, Edison, like all power plant operators, has had to store its own radioactive waste on site, as the nation doesn’t have a permanent repository for such material.
According to Dobken, 41 of the planned 73 canisters at SONGS “have been safely placed into the dry fuel storage facility at San Onofre. All remaining canisters will be stored by mid-2020.”
In its complaint, the group cites the Price-Anderson Act, a federal law governing public liability actions involving nuclear incidents, and claims that Edison is using Holtec’s “thin-walled” and “defective” canisters to contain the waste.
It goes on to allege that the canisters are being buried “into holes dug into the beach.” The use of the canisters, the complaint further states, creates an “imminent danger” that could result in the release of “deadly nuclear waste into the surrounding area.”
Edison and Holtec have disputed the claim, noting that the Act was meant to “compensate for actual injury sustained in a nuclear accident that causes the release of radiation in excess of federal limits.”
In her 38-page ruling, Sammartino agreed with Edison and Holtec, noting that Public Watchdogs didn’t allege that the operators of the plant “caused any exposure to radiation in excess of federal limits.” Touching on the group’s other claim of public nuisance in the lawsuit, she also concluded that the nonprofit “has failed to allege a special injury as required to maintain a cause of action.”
Attorneys representing the parties of the suit argued in federal court in San Diego late last month, when Sammartino announced that she was likely to dismiss the case because she didn’t have subject-matter jurisdiction. She noted that Public Watchdogs already had related matters pending with the U.S. Ninth Circuit Court of Appeals and the NRC.
“What’s a district court judge to do?” Sammartino had asked, later adding: “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 sought the same relief—the immediate suspension of transferring the power plant’s spent nuclear fuel from the wet pools into dry storage.
In September, the group had 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.
Sammartino dismissed the case with prejudice, meaning Public Watchdogs won’t have an opportunity to bring the case back through an amended complaint, “because the Court concludes that the jurisdictional defects” she laid out in the ruling “cannot be cured by further amendment.”
Shawn Raymundo is the city editor for the San Clemente Times. He graduated from Arizona State University with a bachelor’s degree in Global Studies. Before joining Picket Fence Media, he worked as the government accountability reporter for the Pacific Daily News in the U.S. territory of Guam. Follow him on Twitter @ShawnzyTsunami and follow San Clemente Times @SCTimesNews.