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By Shawn Raymundo
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 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.
The group called Holtec’s canisters “thin-walled” and “defective” while claiming that Edison is “dropping them into holes dug into the beach.”
“Due to the Defendants’ mismanagement and mishandling of the nuclear waste, the design and manufacturing defects of the Holtec canisters, and the dangerous burial site, there is an imminent danger that the canisters will fail, releasing deadly nuclear waste into the surrounding area and causing catastrophic harm to the environment,” the group’s complaint stated while citing the Price-Anderson Act, a federal law governing public liability actions involving nuclear incidents.
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 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.”
Sammartino later asked Beste what Public Watchdogs is suggesting occur if there is a pause on decommissioning. He replied that there are several experts in the field of nuclear energy independent from the NRC and Edison who can review the transfer procedures and inspect the canisters.
The judge also asked the attorneys what they believe she should do next: either issue a dismissal with or without prejudice, or send it to the Ninth Circuit Court. If Sammartino moves to dismiss with prejudice, Public Watchdogs wouldn’t have an opportunity to bring the case back.
If she rules to dismiss without prejudice, there is a possibility the group can have it litigated again.
Torres, as well as James Evans, who represents Edison and Holtec, said the case should be dismissed with prejudice. Beste said he would like the court to issue a dismissal without prejudice.
Near the conclusion of the hearing, Beste requested that he be given an opportunity to formally file responses to several of the other questions Sammartino asked. Following a brief recess so she could consider the request, she came back with a denial, stating that she has more than enough to issue a briefing.
It was unclear Monday when Sammartino intends to issue her ruling. As of Tuesday morning, no ruling had been filed with the court.
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.