Public Watchdogs v. Usnrc

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 13, 2021
• Docket: 20-70899
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 13 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

PUBLIC WATCHDOGS, No. 20-70899

Petitioner,

v. MEMORANDUM*

U.S. NUCLEAR REGULATORY COMMISSION; UNITED STATES OF AMERICA,

Respondents,

SOUTHERN CALIFORNIA EDISON COMPANY,

Intervenor.

On Petition for Review of an Order of the Nuclear Regulatory Commission

Argued and Submitted September 1, 2020 Pasadena, California

Before: SILER,** BERZON, and LEE, Circuit Judges.

Public Watchdogs petitions for review of the U.S. Nuclear Regulatory

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Eugene E. Siler, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. Commission’s (“the NRC’s”) denial of its petition under 10 C.F.R. § 2.206 for an

order suspending decommissioning operations at the San Onofre Nuclear

Generating Station (“SONGS”). We dismiss the petition for review.

Public Watchdogs does not dispute the NRC’s characterization of the denial

of the § 2.206 petition as a decision not to institute an enforcement proceeding.

Such a decision is presumptively unreviewable unless the NRC “has consciously

and expressly adopted a general policy that is so extreme as to amount to an

abdication of its statutory responsibilities” or there is law providing “meaningful

standards for defining the limits of [the NRC’s] discretion” in declining to take

enforcement action. Heckler v. Chaney, 470 U.S. 821, 833 n.4, 834 (1985)

(internal quotation marks omitted).

Public Watchdogs has not demonstrated that the NRC has abdicated its duty

to ensure that spent nuclear fuel is stored safely at SONGS. The NRC addressed

the issues raised by Public Watchdogs, including the possibility that the federal

government might never develop a permanent repository for spent nuclear fuel

and, consequently, that spent fuel might be stored at nuclear reactor sites

indefinitely, in its Generic Environmental Impact Statement for Continued Storage

of Spent Nuclear Fuel (the “Continued Storage GEIS”). The Continued Storage

GEIS recognized that spent fuel maintained in dry storage would eventually need

to be transferred to new containers, but it estimated that the transfer would need to

2 be made only once every one hundred years. The D.C. Circuit upheld the

Continued Storage GEIS, concluding, among other things, that the NRC

reasonably determined that the “identified risks [were] essentially common to all

reactor sites.” New York v. NRC, 824 F.3d 1012, 1019 (D.C. Cir. 2016) (internal

quotation marks omitted).

Additionally, the NRC addressed safety concerns relating to the specific dry

cask storage system used at SONGS in its notice-and-comment rulemaking issuing

a certificate of compliance for that storage system and in its inspection reports

reviewing the decommissioning activities at SONGS. Finally, the NRC requires

SONGS’s operator to provide updated financial assurances every year, along with

an updated estimate of the costs required to complete decommissioning. See 10

C.F.R. § 50.82(a)(8)(v). Whatever validity Public Watchdogs’ critiques of the

NRC’s analyses and determinations may have, those critiques fall far short of

demonstrating that the NRC has abdicated its statutory duties.

Public Watchdogs’ contention that the NRC’s regulations and policies

provide a meaningful standard against which to judge the NRC’s exercise of

discretion also fails. Public Watchdogs does not point to any specific language

indicating an intent to circumscribe the NRC’s discretion in deciding whether to

take an enforcement action. See Heckler, 470 U.S. at 833–35.

Public Watchdogs has not overcome the presumption that the NRC’s denial

3 of the § 2.206 petition is unreviewable. We therefore must dismiss the petition for

review.

PETITION DISMISSED.