By John Stang
Southern California Edison and partnering companies have petitioned a federal court to dismiss a lawsuit challenging decommissioning and transfer of spent fuel at the San Onofre Nuclear Generating Station (SONGS) — saying the complaint features legal, engineering, and scientific errors.
The motion to dismiss focuses on arguments that the U.S. Nuclear Regulatory Commission, not the courts, has jurisdiction in this matter; the plaintiff does not have legal standing because none of its members has been harmed by the fuel offload at SONGS; and that the plaintiff misstated several facts in its complaint.
The document was filed on behalf of Southern California Edison (SCE), majority owner of the retired nuclear power plant; co-owner San Diego Gas & Electric Co., along with its parent corporation, Sempra Energy; and Holtec International, the company managing the transfer of SONGS’ spent fuel into on-site storage.
The companies on Sept. 20 first filed a motion for dismissal of the Aug. 29 lawsuit from San Diego activist organization Public Watchdogs in U.S. District Court for Southern California. The original motion was denied as moot after Public Watchdogs amended its complaint, but the defendants refiled on Monday with a largely identical dismissal request.
The U.S. Nuclear Regulatory Commission, the remaining defendant in the lawsuit, also filed a motion to dismiss the original complaint. As of deadline Friday it had not submitted a new motion after its original filing was dismissed as moot.
Plaintiff’s spokeswoman Lynn Stuart said the updated lawsuit features minor changes that do not change the thrust of Public Watchdogs’ claims.
The organization’s lawsuit seeks to nullify SONGS’ current decommissioning plan; to have the site’s decommissioning trust fund analyzed to ensure it has a sufficient balance; to have the Nuclear Regulatory Commission review the efficacy of the canisters that hold the plant’s spent fuel in dry storage; and to appoint an unidentified independent monitor for the site’s decommissioning efforts. Public Watchdogs wants to keep the used fuel in wet storage, which it believes is safer than dry storage.
Public Watchdogs also on Aug. 7 sought a temporary restraining order to halt the spent-fuel transfer, but Judge Janis Sammartino has not ruled on it. A Nov. 7 hearing has been set to hear oral arguments on both sides’ motions.
Public Watchdogs’ complaint describes SCE as having a long record of mistakes dating back for decades at the San Diego County facility, with the Nuclear Regulatory Commission 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 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. The fuel offload resumed in July after a nearly yearlong pause; as of Tuesday, 34 of 73 canisters of spent fuel from the two reactors had been placed in dry storage. The project is expected to be completed next spring.
In total, SONGS’ spent fuel storage pad would hold 3.5 million pounds of used fuel assemblies from its three reactors. Reactor Unit 1 was retired in 1992 and has been mostly decommissioned.
In both motions to dismiss, attorneys for Southern California Edison and other defendants cited a list of alleged factual errors in Public Watchdogs’ original lawsuit. These include:
- Public Watchdogs’ claim that the August 2018 incident “could have turned … much of Southern California into a permanently uninhabitable wasteland” is exaggerated. The defendants contend detailed studies by Holtec show the potential 18-foot drop would not have damaged the 50-ton canister enough to cause a radiation release.
- Public Watchdogs is wrong in saying wet storage is safer than dry storage. The defendants counter that dry-storage casks are far more resistant to earthquakes and generally more safe and secure.
- While Public Watchdogs contends there is a good chance of the fuel canisters failing and breaking down, the motion for dismissal says the canisters have a design life of 60 to 100 years. Also, of the roughly 3,000 fuel canisters currently in use in the United States, none have leaked, according to the motion.
- Public Watchdogs argued that scratches on the canisters — from bumping and scraping as they are lowered into their underground storage slots? — are a serious problem because they show the casks are vulnerable to cracks. Southern California Edison counters that this matter has been studied and the scratches are not a potential problem because they are infinitesimally shallow.
The companies’ motion to dismiss filed on Sept. 30 adds the argument that the Atomic Energy Act of 1953 gives the NRC the ultimate legal authority — and not the courts — to determine whether Holtec’s storage canisters are safe. The Sept. 30 motion also argues that since no radiation leaks or any other harm to the public has occurred from SONGS decommissioning, Public Watchdogs does not have legal standing to file the claim.
In a press statement, Public Watchdogs and its attorneys affirmed their case in the lawsuit and against the motion to dismiss.
“While the NRC said it didn’t believe that the canister would have been ‘deformed’ from the drop, it admitted, ‘no one has analyzed trying to pull a stuck canister from a drop out of the bottom of the vault… I don’t think it’s been done,'” according to the statement. “Small comfort from the Federal Agency charged with protecting the public and the environment from a nuclear disaster.”
The statement said the almost-one-year delay in fuel movement emphasizes the need to keep the fuel in wet storage. It also said the 60-year design life of the canisters has not been independently verified and that Holtec is guaranteeing that lifespan for only 25 years.
The Department of Energy is legally obligated to permanently dispose of used nuclear fuel from SONGS and all other nuclear power plants. It has made little progress toward that goal, long ago missing the Jan. 31, 1998, deadline set by Congress to begin disposal. Under a 2017 settlement on spent fuel storage at the plant, SCE is studying options for transporting it to another location.
An EnergySolutions-AECOM joint venture could begin major decommissioning operations at SONGS this year, pending final regulatory approval from the state. The California Coastal Commission could decide later this month on whether to issue a coastal development permit needed for that work to start. Decommissioning is expected to cost $4.4 billion and to wrap up by 2028.
