Nonprofit: Edison settlement bolsters San Onofre case

A nonprofit hoping to bolster its case against the San Onofre nuclear plant's decommissioning efforts now wants to admit as evidence portions of a settlement Southern California Edison Co. reached with another conservation group in 2017.

Public Watchdogs' federal lawsuit seeks to halt the transport of lethal, spent nuclear fuel that has been kept in wet storage pools at San Onofre Nuclear Generation Station north of San Diego, which began decommissioning in 2013. Public Watchdogs, v. Southern California Edison, et al., 3:19-CV-01635 (S.D. Cal. filed Aug. 29, 2019).

The request for judicial notice was filed Friday by Charles G. La Bella, of counsel at Barnes & Thornburg LLP on behalf of Public Watchdogs' claim against Edison, the U.S. Nuclear Regulatory Commission and Holtec International, which manufacturers canisters for spent fuel.

"Our focus continues to be safely transferring spent nuclear fuel from wet to dry storage, and the safe decommissioning of the San Onofre nuclear plant. Our responsibilities to the communities we serve won't change due to these unsupported and counterproductive legal actions," said Doug Bader, vice president and chief nuclear officer of Southern California Edison.

La Bella's filing asks U.S. District Judge Janis L. Sammartino to consider as evidence a settlement reached in 2017 in a state court case filed by Citizens Oversight Inc.

That case challenged the Coastal Commission's 2015 decision to allow Edison to bury nearly 3 million pounds of nuclear waste on a San Diego Beach. Citizens Oversight Inc. v. California Coastal Commission, Southern California Edison, 37-2015-00037137 (S.D. Super. Ct., filed Nov. 3, 3015).

Citizens Oversight was represented by Michael J. Aguirre of Aguirre Severson LLP, and Edison was represented by Edward J. Casey of Alston and Bird LLP.

In the state case, Edison stipulated to let the court have jurisdiction and authority to enforce the settlement, according to Aguirre, who is uninvolved in Public Watchdogs' matter.

However, in the Public Watchdogs case, Edison argued the federal court has no jurisdiction and filed a motion to throw out the case on Oct. 4. Edison, with co-defendant U.S. Nuclear Regulatory Commission, raised technical objections, arguing any challenges to the commission's decisions must be taken to the 9th U.S. Circuit Court of Appeal, not a federal trial court. Public Watchdogs is four years too late to bring a challenge under the Hobbs Act, which gives parties 60 days to appeal any final licensing decisions, Assistant U.S. Attorney Valerie T. Torres wrote.

La Bella said Monday the settlement in the Citizens Oversight case "has certain admissions we want to use" to bolster the Public Watchdogs' case. He pointed to Edison's admissions regarding the feasibility of moving spent fuel to another facility.

The Citizens Oversight lawsuit raises allegations relevant to the Public Watchdogs case, according to the request.

Edison made admissions in its agreement with Aguirre "that they can't run away from and don't want us to use because they think it hurts their case," La Bella said.

La Bella's latest move follows a tentative defeat on Oct. 3. in another case filed against Edison in San Diego County Superior Court regarding the same project.

In its petition for writ of mandamus, Public Watchdogs challenged the state land commission's certification of the final environmental impact report and approved the decommissioning project that La Bella claims violated the California Environmental Quality Act. Public Watchdogs v. California State Land Commission, 37-2019-00020624-CU-WM-NC (S.D. Super. Ct., filed Apr. 22, 2019).

Judge Timothy M. Casserly tentatively denied Public Watchdogs' petition based on procedural error.

La Bella said that setback has nothing to do with his request for judicial notice in the federal case.

Efforts by Edison, along with co-defendants San Diego Gas & Electric Co. and Sempra Energy, to stop plaintiffs at every turn keep the case from getting heard before any court on the merits, when there is no safe place for nuclear waste to go, and puts the public in danger, La Bella said.