United States District Court, S.D. California
ORDER (1) GRANTING DEFENDANTS' MOTIONS TO
DISMISS, (2) DISMISSING PLAINTIFF'S FIRST AMENDED
COMPLAINT WITH PREJUDICE, AND (3) DENYING PLAINTIFF'S
MOTION FOR PRELIMINARY INJUNCTION (ECF Nos. 2, 5, 41, 42,
Janis L. Sammartino United States District Judge
before the Court are Plaintiff Public Watchdogs' Amended
Motion for Preliminary Injunction and Temporary Restraining
Order (“Mot. for Prelim. Inj., ” ECF No. 5) and
the Motions to Dismiss filed by Defendants Holtec
International, Inc. (“Holtec”) (“Holtec
MTD, ” ECF No. 41); Southern California Edison Company
(“SCE”), San Diego Gas & Electric Company
(“SDG&E”), and Sempra Energy
(“Sempra”) (together, the “Utility
Defendants”; with Holtec, the “Private
Defendants”) (“Utility MTD, ” ECF No. 42);
and the United States Nuclear Regulatory Commission
(“NRC”) (“NRC MTD, ” ECF No. 47). The
Court heard oral argument on November 25, 2019. See
ECF Nos. 58, 59. Having considered the Parties' arguments
and the law, the Court GRANTS
Defendants' Motions to Dismiss, DISMISSES WITH
PREJUDICE Plaintiff's First Amended Complaint,
and DENIES Plaintiff's Motion for
Preliminary Injunction, as follows.
“is a 501(c)(3) non-profit corporation that advocates
for public safety by ensuring that government agencies and
special interests comply with all applicable laws, including
public-safety and environmental protection laws, especially
in the public-utilities industry.” FAC ¶ 4.
“Plaintiff has at least one member who lives within the
zone of exposure to a catastrophic release of radioactive
material from SONGS.” Id.
SDG&E are public utilities doing business in California.
Id. ¶¶ 5-6. Sempra is the parent company
of SDG&E. Id. ¶ 7.
August 1963, Congress enacted Public Law 88-82, which
authorized the “construct[ion], operate[ion],
maintain[enance], and use” of a nuclear power plant on
the Camp Pendleton military base. Id. ¶ 18. The
Utility Defendants operated three nuclear electric generating
units in that area-which is located within a tsunami
inundation zone and between two active fault lines, see
Id. ¶¶ 1, 48-at the San Onofre Nuclear
Generating Station (“SONGS”). Id. ¶
19. SCE owned 78.2% of SONGS, id. ¶ 5, while
SDG&E owned approximately 20% of SONGS. Id.
¶ 6. The first nuclear generating unit at SONGS operated
between 1968 and 1992, while the second and third units
operated from 1983 and 1984, respectively, until June 12,
2013, when they were shut down. Id.
alleges that, throughout this time, “SONGS has had
numerous instances of poor safety and regulatory
compliance.” Id. ¶ 20; see also
Id. ¶¶ 21-28. These led to the announcement on
June 7, 2013, that SONGS would be permanently shut down.
Id. ¶ 29. The Utility Defendants permanently
ceased operation of SONGS Units 2 and 3 on June 12, 2013.
Id. ¶ 41. Plaintiff contends, however, that
issues of mismanagement have continued to plague the
decommissioning process, which has led to “a continuing
liability and an ever-present existential threat.”
See Id. ¶ 30.
example, the NRC-which is “federal government agency
that is mandated by Congress to license and regulate the
Nation's civilian use of radioactive materials to protect
public health and safety, promote the common defense and
security, and protect the environment, ” id.
¶ 10-“has repeatedly failed to exercise any
meaningful oversight of SONGS and has abdicated its role to
regulate [the Private Defendants].” Id. ¶
32. The NRC has declined to perform an independent seismic
hazard assessment of SONGS, see Id. ¶ 33, and
has frequently allowed the Utility Defendants to violate NRC
rules and regulations. See Id. ¶¶ 34-36.
The NRC also has granted several exemptions to the Utility
Defendants from the emergency response regulations, see
Id. ¶¶ 37-38, and allowed the Utility
Defendants to use the $4.7 billion decommissioning trust fund
for purposes other than decommissioning activities. See
Id. ¶ 39. Finally, the NRC granted the Utility
Defendants a license amendment on July 17, 2015 (the
“July 2015 License Amendment”), which permitted
them to decommission the SONGS facility. See Id.
¶ 43. In granting the July 2015 License Amendment,
however, the NRC “relied on the [Utility]
Defendants' own analysis instead of objective criteria or
independent analysis.” Id.
the Utility Defendants previously had stored spent nuclear
fuel (“SNF”) at SONGS in wet storage pools,
see Id. ¶ 45, the Utility Defendants'
decommissioning plan allows for the burial of SNF in an
onsite containment system called an Independent Spent Fuel
Storage Installation (“ISFSI”). Id.
¶ 48. The ISFSI is located in a tsunami inundation zone
located between two seismic fault lines and only 108 feet
from the Pacific Ocean. See Id. ¶ 48.
Consequently, the ISFSI “is only about 18 feet above
the Pacific Ocean's median high tide, ” and
“[t]he bottom of the structure is a mere three feet
above the underground water table.” Id. ¶
49. Accordingly, “[c]limate-change experts predict that
the bottom of each silo located in the ISFSI will be
inundated with salt water as early as 2035.”
Id. ¶ 51.
by Holtec, id. ¶ 52, and guaranteed only for
ten years, id. ¶ 55, the ISFSI calls for the
burial of 73 canisters filled with 3.6 million pounds of SNF,
see Id. ¶¶ 49, 54, approximately 20 feet
underground. See Id. ¶ 48. Like the ISFSI
itself, the canisters were designed and manufactured by
Holtec, id. ¶ 54, who warrants them only for 25
years. See Id. ¶ 55. In contrast to the
thick-walled dry casks used by many international nuclear
decommissioning projects, see Id. ¶ 57,
Holtec's “thin-wall” canisters have
“only a 5/8-inch thick stainless[-]steel wall with an
aluminum egg-crate structure designed to hold up to 37 spent
fuel assemblies.” Id. ¶ 56. Holtec made
design changes to its canisters without the authorization of
the NRC, which rendered four canisters already loaded into
the ISFSI at SONGS potentially defective. See Id.
¶¶ 60-62. The NRC declined to impose a civil fine
for the failure to seek pre-authorization of the change in
the design of the Holtec canisters. See Id. ¶
62. Independent risk assessments of the decommissioning plan
and the Holtec canisters, if performed, have not been made
publicly available. See Id. ¶¶ 50, 52, 58.
the lack of independent analyses and NRC oversight, the
Utility Defendants began burying the canisters at the SONGS
ISFSI on January 31, 2018. See Id. ¶ 53.
Workers discovered a defective Holtec canister on March 5,
2018, see Id. ¶ 63, and the Utility Defendants
admitted that four potentially defective canisters had
already been filled and buried at a Community Engagement
Panel Meeting on March 22, 2018. See Id. ¶ 64.
Because “Defendants have consistently used [fewer]
personnel than necessary to ensure that the Holtec canisters
are safely and effectively loaded into the ISFSI, ”
id. ¶ 66, they have “negligently gouged
and then buried twenty-nine (29) fully loaded canisters at
SONGS.” Id. ¶ 67. “[T]his gouging
may lead to deeper, through-the-wall cracks, ” which
may “be exacerbated, inter alia, by the
presence of salt air, fog, rain, and salt water-the precise
weather conditions that the canisters will be exposed to at
the current location just steps from the Pacific
Ocean.” Id. Further, “many (if not all)
of the canisters were negligently scratched during
transportation to the ISFSI.” Id. ¶ 68.
22, 2018, the Utility Defendants “nearly dropped a
49-ton canister full of deadly radioactive nuclear waste more
than 18 feed into the ISFSI when it was caught on a quarter
inch thick steel guide ring.” Id. ¶ 69.
They failed to report the incident to the NRC. See
Id. ¶¶ 70-71. On August 3, 2018, the Utility
Defendants “once again lost control of a 49-ton
canister full of deadly radioactive nuclear waste while it
was being lowered into a below-ground storage silo, ”
id. ¶ 72, which resulted in a work stoppage.
See Id. ¶ 74. The Utility Defendants informally
informed the NRC on August 6, 2018, see Id. ¶
76, and a whistleblower reported the event at a Community
Engagement Panel Meeting on August 9, 2018. See Id.
¶ 73. As a result of the August 3, 2018 incident,
“[o]n March 25, 2019, the NRC issued a ‘Notice of
Violation' and ‘NRC Special Inspection Report'
to Edison for two safety violations.” Id.
¶ 91. The first violation concerned “a failure to
make certain that safety equipment was operating, ”
while the second was for “failure to report the safety
incident to the NRC.” Id. “[T]he NRC
issued an Inspection Charter for SONGS, which found five
violations that were ultimately penalized [by] the imposition
of a . . . fee of $116, 000 on [SCE].” Id.
¶ 79; see also Id. ¶ 91.
August 24, 2018, the NRC issued an Inspection Report to the
[Utility] Defendants, ” in which “the NRC
determined that [SCE] had committed a Severity IV violation
of the NRC's safety requirements between June 2017 and
June 2018.” Id. ¶ 85. “The
violation related to the design control of field changes made
to the safety equipment the [Utility] Defendants used to loan
SNF into storage canisters.” Id.
November 29, 2018, the NRC issued an Inspection Report to
Holtec, ” in which the NRC “informed Holtec that
it was being considered for ‘Escalated Enforcement
Action' for two apparent violations” related to the
change in the design of the spent fuel storage casks. See
Id. ¶ 87. Plaintiff believes that the first
violation relates to Holtec's “failure to establish
adequate design control measures, ” which resulted in
the defect that may have rendered the first four canisters
deployed at SONGS unsafe. See Id. ¶ 88.
believes that the second violation relates to Holtec's
failure to provide the NRC with prior authorization of its
design changes. See Id. ¶ 89.
15, 2019, after voluntarily suspending the transfer of SNF
following the August 3, 2018 incident, the Utility
“Defendants notified the public that Defendant Holtec
was again moving SNF from wet storage to canisters and
burying canisters near San Onofre beach.” Id.
¶ 93. Additional canisters have continued to be buried
during the pendency of this action. See Id.
November 15, 2017, Plaintiff filed an action for declaratory
and injunctive relief against the United States; the United
States Department of Defense; James Mattis, Secretary of
Defense; the United States Department of the Navy; Richard V.
Spencer, Secretary of the Navy; SCE; and SDG&E, alleging
a single cause of action for violation of Public Law 88-82.
See generally Complaint, Pub. Watchdogs v.
United States (“Pub. Watchdogs I”), No.
17-CV-2323 JLS (MSB) (S.D. Cal. filed Nov. 25, 2017), ECF No.
1. On August 30, 2018, the Court dismissed Public
Watchdogs I on the grounds that Plaintiff had failed to
establish Article III standing because “Plaintiff ha[d]
not shown that the alleged future harm or diminishment of the
area [wa]s ‘certainly impending' or even that there
[wa]s a ‘substantial risk' or ‘credible
threat' that immediate harm w[ould] occur.” Order
Granting Defendants' Motions to Dismiss at 7-8, Pub.
Watchdogs I (filed Aug. 30, 2018), ECF No. 24; see
also 2018 WL 4153302, at *4. Although Plaintiff filed an
amended complaint, see Amended Complaint, Pub.
Watchdogs I (filed Sept. 28, 2018), ECF No. 25, it
voluntarily dismissed Public Watchdogs I on July 3,
2019. See Notice of Voluntary Dismissal Without
Prejudice, Public Watchdogs I (filed July 3, 2019),
ECF No. 50.
August 29, 2019, Plaintiff filed the instant action against
SCE, SDG&E, Sempra, Holtec, and the NRC, alleging three
causes of action: (1) violation of the Administrative
Procedures Act, 5 U.S.C. §§ 702 et seq.,
against the NRC; (2) public nuisance in violation of
California Civil Code §§ 3479-3480 against the
Private Defendants; and (3) strict products liability against
Holtec. See generally ECF No. 1. Plaintiff also
filed a motion for preliminary injunction and temporary
restraining order seeking to restrain Defendants from
transferring further SNF into the Holtec canisters or storing
additional spent nuclear fuel in the ISFSI at SONGS pending a
full hearing on the decommissioning plan. See
generally ECF No. 2. Plaintiff amended its motion the
following day, see ECF No. 5, and the case was
reassigned to this Court based on its relation to Public
Watchdogs I. See ECF No. 16.
response to Defendants' notification of their intent to
oppose Plaintiff's request for a temporary restraining
order, see ECF Nos. 6, 17, the Court set a briefing
schedule. See ECF No. 18. Soon thereafter,
Defendants filed motions to dismiss that raised, among other
concerns, the Court's lack of subject-matter
jurisdiction. See ECF Nos. 19, 28, 29. These
concerns were echoed in Defendants' oppositions to
Plaintiff's motion for a preliminary injunction.
See ECF Nos. 36, 37.
in response to Defendants' jurisdictional arguments,
Plaintiff filed the operative First Amended Complaint, which
added an additional cause of action for a public liability
action pursuant to the Price-Anderson Act, 42 U.S.C. §
2210(n)(2). See generally ECF No. 38. The Court
therefore denied as moot and without prejudice the pending
motions to dismiss. See ECF No. 39. The instant
Motions to Dismiss followed. See ECF Nos. 41, 42,
October 21, 2019, shortly before filing its oppositions to
Defendants' Motions to Dismiss, see ECF Nos. 51,
52, Plaintiff filed with the NRC a 10 C.F.R. § 2.206
Petition to Immediately Suspend Decommissioning Operations at
San Onofre Nuclear Generating Station Unites 2 and 3.
Pub. Watchdogs v. S. Cal. Edison Co., No. 19-72670
(N.R.C. filed Oct. 21, 2019), DE 1; see also ECF No.
54 Ex. 47. The same day, Plaintiff also filed an Emergency
Petition for Writ of Mandamus with the United States Court of
Appeals for the Ninth Circuit. Pub. Watchdogs v. U.S.
Nuclear Regulatory Comm'n, No. 19-72670 (9th Cir.
filed Oct. 21, 2019), DE 1; see also ECF No. 55 Ex.
MOTIONS TO DISMISS
Federal Rule of Civil Procedure 12(b)(1)
courts are courts of limited jurisdiction, and as such have
an obligation to dismiss claims for which they lack
subject-matter jurisdiction. Demarest v. United
States, 718 F.2d 964, 965 (9th Cir. 1983). Because the
issue of standing pertains to the subject matter jurisdiction
of a federal court, motions raising lack of standing are
properly brought under Federal Rule of Civil Procedure
12(b)(1). White v. Lee, 227 F.3d 1214, 1242 (9th
Cir. 2000). “The party asserting jurisdiction bears the
burden of establishing subject matter jurisdiction on a
motion to dismiss for lack of subject matter
jurisdiction.” In re Dynamic Random Access Memory
(DRAM) Antitrust Litig., 546 F.3d 981, 984 (9th Cir.
2008) (citing Kokkonen v. Guardian Life Ins. Co. of
Am., 511 U.S. 375, 377 (1994); Stock W., Inc. v.
Confederated Tribes of the Colville Reservation, 873
F.2d 1221, 1225 (9th Cir. 1989)). “Dismissal for lack
of subject matter jurisdiction is appropriate if the
complaint, considered in its entirety, on its face fails to
allege facts sufficient to establish subject matter
jurisdiction.” Id. (citing Love v. United
States, 915 F.2d 1242, 1245 (9th Cir. 1990)).
12(b)(1) motions may challenge jurisdiction facially or
factually. Safe Air for Everyone v. Meyer, 373 F.3d
1035, 1039 (9th Cir. 2004). A facial attack is one where
“the challenger asserts that the allegations contained
in a complaint are insufficient on their face to invoke
federal jurisdiction.” Id. In evaluating such
a challenge, the court accepts the factual allegations in the
complaint as true. See Miranda v. Reno, 238 F.3d
1156, 1157 n.1 (9th Cir. 2001). In contrast, where the
defendant challenges the factual basis underlying the
allegations, the court need not accept the allegations as
true and may instead make factual determinations.
White, 227 F.3d at 1242. “In ruling on a
challenge to subject matter jurisdiction, the district court
is ordinarily free to hear evidence regarding jurisdiction
and to rule on that issue prior to trial, resolving factual
disputes where necessary.” Augustine v. United
States, 704 F.2d 1074, 1077 (9th Cir. 1983) (citing
Thornhill Publ'g Co. v. Gen. Tel. Corp., 594
F.2d 730, 733 (9th Cir. 1979)). When making such a ruling,
the district court may review evidence beyond the complaint
without converting the motion to dismiss into a motion for
summary judgment. Savage v. Glendale Union High
Sch., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003) (citing
White, 227 F.3d at 1242).
decision whether to grant leave to amend rests in the
discretion of the trial court. See Pink v. Modoc Indian
Health Project, Inc., 157 F.3d 1185, 1189 (9th Cir.
1998) (citing DCD Programs, Ltd. v. Leighton, 833
F.2d 183, 185-86 (9th Cir.1987)). Leave to amend is properly
denied where leave would be futile, id. (citing
DCD Programs, 833 F.3d at 185-86), such as where
“the alleged facts, even if true, provide no basis
for subject matter jurisdiction.” Id. (citing
DVD Programs, 833 F.3d at 185-86).
a federal court can consider the merits of a legal claim, the
person seeking to invoke the jurisdiction of the court must
establish the requisite standing to sue.” Whitmore
v. Arkansas, 495 U.S. 149, 154 (1990). The Private
Defendants challenge Plaintiff's standing to seek
injunctive relief because “Plaintiff does not have
Article III standing to bring any claim because it has not
suffered an injury in fact.” Holtec MTD at 21; see
also Id. at 21-23; Utility MTD at 19-22. The NRC also
disputes Plaintiff's standing to challenge “two
exemptions concerning the use of the decommissioning trust
fund and insurance requirements” on the grounds that
Plaintiff has failed to allege any injury-in-fact or
redressability. ECF No. 53 at 9-10.
III of the Constitution limits the jurisdiction of federal
courts to ‘Cases' and ‘Controversies.'
One component of the case-or-controversy requirement is
standing, which requires a plaintiff to demonstrate the
now-familiar elements of injury in fact, causation, and
redressability.” Lance v. Coffman, 549 U.S.
437, 439 (2007) (per curiam) (citing Lujan v. Defenders
of Wildlife, 504 U.S. 555, 573-74 (1992)). To satisfy
the requirements of “injury in fact, ” a
plaintiff must show that she suffered “an invasion of a
legally protected interest which is (a) concrete and
particularized, and (b) actual or imminent, not conjectural
or hypothetical.” Lujan, 504 U.S. at 560
(internal quotation marks and citations omitted).
association has standing to bring suit on behalf of its
members when: (a) its members would otherwise have standing
to sue in their own right; (b) the interests it seeks to
protect are germane to the organization's purpose; and
(c) neither the claim asserted nor the relief requested
requires the participation of individual members in the
lawsuit.” Hunt v. Wash. State Apple Advert.
Comm'n, 432 U.S. 333, 343 (1977). Claims for