NOT FOR PUBLICATION FILED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
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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
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of the § 2.206 petition is unreviewable. We therefore must dismiss the petition for
review.
PETITION DISMISSED.
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