By John Stang
A federal judge ruled Tuesday against an activist organization’s lawsuit seeking a halt to the transfer of spent reactor fuel into dry storage at the retired San Onofre Nuclear Generating Station (SONGS) in California.
Following oral arguments on Nov. 25, Judge Janis Sammartino, of U.S. District Court for Southern California, ruled in favor of SONGS majority owner Southern California Edison and fellow defendants including the U.S. Nuclear Regulatory Commission. She denied Public Watchdogs’ request for a preliminary injunction against the additional offload of used fuel and dismissed the overall complaint with prejudice, meaning it could not be filed again.
In her ruling, Sammartino concurred with the defendants’ argument that the court did not have jurisdiction in this case and that Public Watchdogs had failed to demonstrate that its members have “suffered physical harm” from the fuel transfer or “state a plausible claim for relief.”
“Because the Court concludes that it lacks jurisdiction over this action and that Plaintiff has failed to state a plausible claim for relief, the Court concludes that Plaintiff is unlikely to succeed on the merits,” Sammartino wrote.
Public Watchdogs’ intent in the lawsuit was to halt decommissioning of the plant’s last two reactors and the movement of fuel — arguing SONGS has a poor safety record and that the walls of the canisters used for storage of the radioactive used fuel, supplied by defendant Holtec International, are too thin to function rough conditions.
Throughout her ruling, Sammartino focused on the Nuclear Regulatory Commission having jurisdiction over the specific legal issues raised in the complaint and that the plaintiff could not prove specific harm to its constituents from any SONGS-related actions mentioned in the litigation. She said that nullified Public Watchdogs’ contentions that federal administrative laws were broken, that the California Civil Code should be applied in this case, and that Holtec built canisters that were allegedly too weak to be effective.
Public Watchdogs said its attorneys are studying a potential appeal of Sammartino’s ruling.
“We believe the case has merit and that the evidence should be heard in a court of law,” Charles Langley, executive director of the San Diego organization, said by email.
Southern California Edison said in a written statement that it “is pleased with the ruling dismissing Public Watchdogs’ complaint, and denying their request for an injunction to halt fuel transfer operations at the San Onofre nuclear plant. The court’s decision, which further prohibits plaintiff from seeking to resubmit their claims in the court, allows SCE to continue moving spent nuclear fuel into a safe storage system.”
So far, 41 of 73 canisters have been moved from SONGS Units 2 and 3 to the dry storage family. That project is scheduled to be completed in mid-2020.
Public Watchdogs’ original complaint described SCE as having a long record of mistakes dating back for decades at the San Diego County facility, with the NRC providing insufficient oversight.
Southern California Edison permanently retired SONGS’ final two reactors in 2013 and the next year hired Holtec International to move their used fuel assemblies from cooling pools to a dry-storage facility next to the Pacific Ocean. Longstanding concerns about on-site storage of radioactive waste were exacerbated by an August 2018 mishap in which a spent-fuel canister was left at risk of an 18-foot drop for nearly an hour.
The NRC in March issued a $116,000 fine against the utility for violations of nuclear safety regulations in that incident. The fuel offload resumed in July after a nearly yearlong pause. When it is complete, roughly 3.5 million pounds of fuel assemblies will be in dry storage.
That includes spent fuel from reactor Unit 1, which was retired in 1992 and has been mostly decommissioned. Primary decommissioning of the remaining reactors is scheduled to begin next year and wrap up by 2028, under an AECOM-EnergySolutions joint venture.
This week’s federal ruling came just over a month after a California Superior Court judge rejected a petition by another advocacy group, Citizens’ Oversight of El Cajon, to suspend the fuel offload. The organization said Southern California had failed to meet the terms of a 2017 settlement that allowed it to expand SONGS’ dry-storage pad to accommodate the used fuel from Units 2 and 3.
That deal required the utility to make “commercially reasonable” efforts to find an off-site storage site for the spent fuel. Since then, among other steps, SCE formed an expert group and hired a contractor to prepare a strategic plan for relocating the radioactive material.
Superior Court Judge Timothy Taylor ruled in that case that Citizens’ Oversight had not proven breach of the settlement.
