Judge: Public Watchdogs can’t refile challenge to stop nuclear fuel burial at power plant

A federal judge has thrown out a lawsuit hoping to stop nuclear fuel from being buried on a San Diego beach near a defunct power plant, ruling she lacked subject matter jurisdiction.

U.S. District Judge Janis L. Sammartino's 38-page decision, issued Tuesday, dismissed the case with prejudice and found plaintiff nonprofit group Public Watchdogs failed to show any of its members or their properties sustained physical injury or harm from the decommissioning project at San Onofre Nuclear Generation Station.

Sammartino indicated after oral arguments on Nov. 26 she was leaning toward dismissing the matter, due to the jurisdictional problem.

Public Watchdogs sued Southern California Edison Co. and Sempra Energy, which own and operate the plant south of San Clemente. The utilities were issued a license amendment in 2015 and approved to continue decommissioning by the U.S. Nuclear Regulatory Commission. The plant closed in 2013.

Edison spokesman John Dobken said Friday the utility is pleased with Sammartino's decision, "which further prohibits plaintiffs from seeking to resubmit their claims in court and allows SCE to continue moving spent nuclear fuel into a safe storage system."

So far, 41 of the planned 73 canisters have been safely placed into the dry fuel storage facility at San Onofre, Dobken added, and all remaining canisters will be stored by mid-2020.

Public Watchdogs executive director Charles Langley expressed his disappointment with the dismissal but confirmed they are entertaining appeal.

"We believe the case has merit and the evidence should be heard in a court of law. The Nuclear Regulatory Commission has failed to protect the public from an inevitable nuclear waste disaster at San Onofre," he said Friday. "The court did not dispute the facts or the dangers. Instead, it dismissed the case for jurisdictional reasons."

Former federal prosecutor Chuck La Bella, a partner at Barnes & Thornburg LLP who represents the nonprofit, also expressed his disappointment but said "We understand the court's ruling."

Public Watchdogs has two additional petitions seeking to stop the burial process before the NRC and the 9th U.S. Circuit Court of Appeals. Both were filed just after the San Diego federal lawsuit was filed.

While he has no hope in the petition before the NRC given Sammartino's ruling, La Bella said he remains "cautiously optimistic regarding the petition before the 9th Circuit, which is considering the matter and has ordered defendants to respond to us."

The lawsuit sought to stop the burial of spent nuclear fuel at San Onofre at least until Edison came up with a revised plan to safely transfer and store the fuel elsewhere. Public Watchdogs v. Southern California Edison, U.S. Nuclear Regulatory Commission, 3:19-CV-01635 (S.D. Cal., filed Aug. 29, 2019).

The nonprofit sued the utilities for public nuisance and also sued the NRC for alleged violation of the Administrative Procedures Act. The group also sued Holtec International for strict products liability. Holtec was hired to defuel and store the waste in steel canisters on the beach next to the closed plant.

The lawsuit warned of alleged errors in mismanagement and handling of the waste, which the plaintiff said created imminent risks that could cause death, injury and other harm to millions of residents.

In essence, the state law claims are preempted by the Atomic Energy Act, which occupies the field for protections against radiation hazards and disposal of radioactive materials, Sammartino ruled. That power is explicitly reserved to the NRC, which regulates the disposal of nuclear material, not the federal court, she added.