By John Stang
A legal tug-of-war is underway between a San Diego law firm and the U.S. Nuclear Regulatory Commission over the release of paperwork related to federal oversight of used-fuel management at the retired San Onofre Nuclear Generating Station (SONGS) in California.
In March and June of this year, attorney Michael Aguirre submitted three complaints in U.S. District Court for Southern California. The complaints allege the NRC has not adequately responded to several of his firm’s 2018 and early 2019 Freedom of Information Act (FOIA) requests for documents on problems at the San Diego County facility.
“To date, the NRC has engaged in stonewall tactics and has denied Plaintiff’s request for records without any reasonable justification,” according to a March 14 request for declaratory judgment filed on behalf of Aguirre by his law partner, Maria Severson. “The NRC’s actions are inapposite to FOIA’s policy of broad disclosure of government documents and maximum feasible public access to government information.”
In three motions for dismissal or summary judgment filed in August and October, the NRC argued that that the firm of Aguirre & Severson has filed 14 FOIA requests since December 2018, and the agency is working to comply with them. One NRC filing contends the attorneys “refused to engage” with its requests for clarification and advance payment for production of select documents. The agency further argued that Aguirre’s court filings are premature because the firm has not completed all of the NRC’s appeals process on these matters.
In a Dec. 5 order, U.S. District Judge Cynthia Bashant ordered the parties to meet with a federal magistrate judge to try to resolve their differences. Failing that, oral arguments for all three cases are scheduled for 2 p.m. on Feb. 18, 2020. No date has been set yet for such a meeting with the magistrate.
Aguirre and Severson have for years handled litigation regarding SONGS, which closed permanently in 2013 after faulty steam generators were installed in its two remaining operational reactors. Their cases have ranged from contesting the transfer of spent fuel into dry storage at the site to battling rate increases to SCE customers due to pay for decommissioning the plant.
Plant majority owner Southern California Edison (SCE) in 2014 hired Holtec International to transfer the two reactors’ spent fuel from wet storage to dry storage, a process that has faced a number of high-profile mishaps.
In his first filing on March 14, Aguirre asked the court to force the NRC to release records he had sought under December 2018 FOIA requests regarding a broken part found in one Holtec canister in February 2018. He also sought copies of NRC interviews with SCE and Holtec employees regarding an August 2018 incident in which a canister was left at risk of a nearly 20-foot drop into its dry-storage slot.
The second incident brought the fuel offload to a halt for nearly a year while SCE and Holtec made improvements to the process. It resumed in July and is scheduled to be completed by mid-2020. Meanwhile, the NRC in March fined Southern California Edison $116,000 for violations of nuclear safety rules in the mishap.
In an Aug. 5 response with the court, the NRC said it has released many of the document sought by Aguirre & Severson. It also argued that the lawyers have not responded to a clarification request for a narrow or broad interpretation of the word “operations” in one FOIA filing for “the records NRC reviewed in connected with dry cask storage operations.” And the NRC said the law firm did not exhaust all of the available administrative appeals options before taking the case to the federal judge.
In the second filing on March 19, Aguirre sought all records of communication dating to Nov. 29, 2018, between SCE representatives and NRC officials regarding a then-upcoming March 25 agency meeting on the August 2018 incident. The law firm contended that it had made several FOIA requests on this matter during the three months prior to the public meeting, and that the NRC misclassified those filings as administrative appeals.
The regulator’s Aug. 5 response said consulting with a third party such as SCE is normal in preparing for a meeting or an action. It also argued that Aguirre did not exhaust the administrative appeals process in this matter and that his March 19 filing was an attempted to do an end run around that process.
On June 12, Severson filed another complaint in federal court saying that SCE and the NRC communicated several times in April and May as the agency prepared responses to follow-up FOIA requests from the firm. The complaint seeks more records of communications between the parties, alleging SCE is controlling what a federal agency is producing to the plaintiff.
“There is a deep public interest in finding out the extent to which the NRC is allowing the nuclear waste owner to control production of pertinent records under the FOIA. Plaintiff has raised substantial questions about the extent to which the NRC is colluding with the nuclear waste owner, thereby placing the health and safety of the people in the San Diego region at risk,” Severson wrote.
On Aug. 26, the NRC told the court it has provided the information sought by the law firm – a contention — a contention Aguirre and Severson dispute. It said the firm has not exhausted the administrative appeals process.
