ML19353D482

12-16-19, Petitioners Reply to Response to Mandamus Petition (9th Cir.)(Case No. 19-72670)

ML19353D482
Person / Time
Site:	San Onofre
Issue date:	12/16/2019
From:	Andrew Averbach, Beste E, Labella C Barnes & Thornburg, LLP, NRC/OGC, Public Watchdogs
To:	US Federal Judiciary, Court of Appeals, 9th Circuit
References
11534102, 17, 19-72670
Download: ML19353D482 (26)

Text

Case: 19-72670, 12/16/2019, ID: 11534102, DktEntry: 17, Page 1 of 26 NO. 19-72670 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT In re PUBLIC WATCHDOGS PUBLIC WATCHDOGS, Petitioners, v.

UNITED STATES NUCLEAR REGULATORY COMMISSION, Respondent, and SOUTHERN CALIFORNIA EDISON COMPANY, SAN DIEGO GAS & ELECTRIC COMPANY, Real Parties in Interest.

On Petition for Writ of Mandamus to the United States Nuclear Regulatory Commission REPLY IN SUPPORT OF EMERGENCY PETITION FOR WRIT OF MANDAMUS CHARLES G. LA BELLA ERIC BESTE BARNES & THORNBURG LLP 655 WEST BROADWAY, SUITE 900 SAN DIEGO, CA 92101 TELEPHONE: 619-321-5000 FACSIMILE: 310-284-3894 Attorneys for Public Watchdogs

Case: 19-72670, 12/16/2019, ID: 11534102, DktEntry: 17, Page 2 of 26 TABLE OF CONTENTS INTRODUCTION ...................................................................................... 1 ARGUMENT..3

1. An order temporarily suspending the burial of spent nuclear fuel at SONGS is necessary to protect the Courts jurisdiction. .......... 3 A. The Court will have jurisdiction to review the NRCs final action on Petitioners 2.206 petition. ........................................................ 4 B. Petitioners 2.206 petition is neither untimely nor precluded by prior SONGS litigation. ................................................................. 8 C. The Court will lose jurisdiction absent an order temporarily suspending the burial of spent nuclear fuel at SONGS. ............ 10

2. An order temporarily suspending the burial of spent nuclear fuel at SONGS is warranted under the applicable legal standards. . 11 A. The TRAC factors govern the Courts analysis. .......................... 12 B. The TRAC factors are satisfied. ................................................... 15 C. The Court has authority under the All Writs Act to temporarily suspend the burial of spent nuclear fuel at SONGS. ................. 18 CONCLUSION ........................................................................................ 20 CERTIFICATE OF COMPLIANCE ........................................................ 22 i

Case: 19-72670, 12/16/2019, ID: 11534102, DktEntry: 17, Page 3 of 26 TABLE OF AUTHORITIES Page(s)

Cases In re A Community Voice, 878 F.3d 779 (9th Cir. 2017) ......................................................... 15, 16 Arnow v. NRC, 868 F.2d 223 (7th Cir. 1989) ................................................................. 6 In re Baldwin-United Corp.,

770 F.2d 328 (2d Cir. 1985) ................................................................ 13 Builders Bank v. FDIC, 846 F.3d 272 (7th Cir. 2017) ................................................................. 6 In re Cal. Power Exchange Corp.,

245 F.3d 1110 (9th Cir. 2001) ............................................. 3, 12, 13, 15 Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663 (2016) ........................................................................... 10 F.T.C. v. Dean Foods Co.,

384 U.S. 597 (1966) ............................................................................... 3 Florida Power & Light Co. v. Lorion, 470 U.S. 729 (1985) ............................................................................... 5 Heckler v. Chaney, 470 U.S. 821 (1985) ............................................................................... 7 Ind. Living Cntr. of S. Cal., Inc. v. Shewry, 543 F.3d 1047 (9th Cir. 2008) ............................................................. 14 Klay v. United Healthgroup, Inc.,

376 F.3d 1092 (11th Cir. 2004) ........................................................... 13 Makekau v. State, No. 17-16360, 2019 WL 6316672 (9th Cir. Nov. 26, 2019)................. 14 ii

Case: 19-72670, 12/16/2019, ID: 11534102, DktEntry: 17, Page 4 of 26 Mashpee Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d 1094 (D.C. Cir. 2003) ........................................................... 16 In re Pesticide Action Network, 798 F.3d 809 (9th Cir. 2015) ............................................................... 12 Public Watchdogs v. United States, et al.,

No. 19-cv-1635-JLS, ECF Doc. 34-1 ..................................................... 9 Susquehanna Valley Alliance v. Three Mile Island Nuclear Reactor, 619 F.2d 231 (3d Cir. 1980) ........................................................ 4, 5, 19 Union of Concerned Scientists v. NRC, 880 F.2d 552 (D.C. Cir. 1989) ............................................................... 8 Statutes 28 U.S.C. 2349 ........................................................................................... 5 28 U.S.C. § 1651(a) .................................................................................. 19 42 U.S.C. § 2239 ........................................................................................ 5 Other Authorities 10 C.F.R. 2.206(a) ................................................................................... 8-9 10 C.F.R. § 2.802 ....................................................................................... 9 iii

Case: 19-72670, 12/16/2019, ID: 11534102, DktEntry: 17, Page 5 of 26 INTRODUCTION Although mandamus is a remedy reserved for only extraordinary cases, it is difficult to conceive of a more extraordinary case than the one before the Court. It is undisputed that the NRC is permitting Licensees to inter hundreds of tons of deadly spent nuclear fuel a mere 108 feet from one of Californias most populated beaches, within a tsunami inundation zone surrounded by active fault lines, and in an underground storage facility that sits just inches above the median high tide level. It is also undisputed that the transfer of spent nuclear fuel at SONGS was recently suspended for almost a year because Licensees nearly dropped two 49-ton canisters containing more radioactive waste than was released during the entire Chernobyl disaster. Finally, and perhaps most important, it is undisputed that the Licensees decommissioning plan, and the NRCs various actions permitting the implementation of Licensees decommissioning plan, are based on the arbitrary assumption that spent nuclear fuel will be stored at SONGS only temporarily. In reality, there is no permanent repository to which the spent nuclear fuel at SONGS could be transferred, nor is there even a viable plan to construct such a repository in the foreseeable future. Thus, although 1

Case: 19-72670, 12/16/2019, ID: 11534102, DktEntry: 17, Page 6 of 26 Licensees and the NRC pretend that SONGS will be free of spent nuclear fuel in the relatively near future, the millions of residents who live in the area will actually face the specter of a nuclear disaster at SONGS for generations.

Despite the fanciful assumptions underlying Licensees decommissioning plan and the serious public safety hazards posed by the continued burial of spent nuclear fuel at SONGS, the NRC and Licensees are determined to complete the burial of all spent nuclear fuel at SONGS as fast as possible. In furtherance of these efforts, the NRC failed to even acknowledge Petitioners 2.206 petition until after Petitioner sought mandamus relief in this Court, and it continues to delay taking final action on the 2.206 petition, notwithstanding its arguments to this Court that the petition is entirely unfounded. The ultimate objective of these delay tactics is obviousthe NRC hopes to buy Licensees enough time to bury all spent nuclear fuel at SONGS before this Court has the opportunity to consider the merits of Petitioners 2.206 petition, thereby rendering any subsequent judicial review of the petition moot. The Court should not countenance these dilatory tactics. Rather, for the reasons discussed below and in Petitioners Emergency Petition for Writ of 2

Case: 19-72670, 12/16/2019, ID: 11534102, DktEntry: 17, Page 7 of 26 Mandamus, the Court should order the NRC to temporarily suspend the burial of spent nuclear fuel at SONGS in order to protect its jurisdiction to review the grave issues raised by the 2.206 petition.

ARGUMENT

1. An order temporarily suspending the burial of spent nuclear fuel at SONGS is necessary to protect the Courts jurisdiction.

It is well-established that the All Writs Act empowers the federal courts to issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law. F.T.C. v.

Dean Foods Co., 384 U.S. 597, 603 (1966). The authority granted by the All Writs Act is not confined to the issuance of writs in aid of a jurisdiction already acquired by appeal but extends to those cases which are within [a courts] appellate jurisdiction although no appeal has been perfected. Id. Thus, when a court will have jurisdiction to review a final agency action, it also has the power to preserve its jurisdiction or maintain the status quo by injunction pending review of an agencys action through the prescribed statutory channels. Id.; see also In re Cal.

Power Exchange Corp., 245 F.3d 1110, 1119 (9th Cir. 2001) (explaining that the All Writs Act authorizes us to issue mandamus relief necessary 3

Case: 19-72670, 12/16/2019, ID: 11534102, DktEntry: 17, Page 8 of 26 to protect our prospective jurisdiction); Susquehanna Valley Alliance v.

Three Mile Island Nuclear Reactor, 619 F.2d 231, 237 (3d Cir. 1980)

(Thus, the Alliance could have asked the NRC to act, see 10 C.F.R. s 2.206, and could have asked the appropriate court of appeals to grant pendent lite relief while NRC considered the case).

A. The Court will have jurisdiction to review the NRCs final action on Petitioners 2.206 petition.

Licensees argue that there is significant dispute about whether the NRCs final order on the NRC Petition would even be reviewable. Edison Ans. at 26. 1 For its part, the NRC readily concedes that if it denies the 1In addition, Licensees erect a completely fictitious procedural barrier in yet another desperate attempt to prevent the Court from considering the merits of this extraordinary matter. Specifically, Licensees argue that Petitioners 36-Page Petition violates Circuit Rule 21-1(c), and that Petitioners refusal to conform to formatting rules, warrants dismissal of this Petition. See Edison Ans. at 2, n. 2. Circuit Rule 21-2(c) (not 21-1(c)), provides that, except by permission of the Court, a petition for writ of mandamus may not exceed 30 pages. However, Circuit Rule 32-3, provides: If an order or rule of this Court sets forth a page limit for a brief or other document, the affected party may comply with the limit by

. . . filing a monospaced or proportionally spaced brief or other document in which the word count divided by 280 does not exceed the designated page limit. Petitioners Emergency Petition is 7265 words. 7265 divided by 280 is 25.95. Thus, Petitioner fully complied with this Courts formatting rules, and the fact that Licensees would seek dismissal of this Petition on such a hyper-technical argument, much less such a clearly erroneous hyper-technical argument, only betrays the weakness of their position.

4

Case: 19-72670, 12/16/2019, ID: 11534102, DktEntry: 17, Page 9 of 26 2.206 Petition, the Court will have Hobbs Act jurisdiction over a challenge to that final order, before confusingly suggesting that its final action on the 2.206 petition would be presumptively unreviewable by this Court. NRC Ans. at 18-20. These arguments are not altogether clear, but to the extent the NRC and Licensees argue that this Court lacks jurisdiction to review the NRCs final action on Petitioners 2.206 petition, they are wrong.

As the NRC acknowledges, the Supreme Court has long held that courts of appeals have jurisdiction under the Hobbs Act to review the NRCs final dispositions of 2.206 petitions because they constitute final agency actions in proceedings for the granting, suspending, revoking, or amending of a nuclear facility license. See Florida Power & Light Co. v.

Lorion, 470 U.S. 729, 746 (1985) (We therefore hold that 42 U.S.C. § 2239 vests in the courts of appeals initial subject-matter jurisdiction over Commission orders denying § 2.206 citizen petitions.); see also Three Mile Island, 619 F.2d at 237 (explaining that parties could have filed a 2.206 petition and sought interim relief from the court of appeals under the All Writs Act); see also 28 U.S.C. 2349 (setting forth broad jurisdiction of courts of appeals to review final agency orders). Notwithstanding this 5

Case: 19-72670, 12/16/2019, ID: 11534102, DktEntry: 17, Page 10 of 26 clear Supreme Court precedent, the NRC and Licensees cite several post-Lorion cases in which circuit courts have held that they lack jurisdiction to review the denial of 2.206 petitions because they are presumptively unreviewable agency enforcement actions which are committed to the agencys discretion as a matter of law. See NRC Ans. at 19-20; Edison Ans. at 27. While it is true that a few circuit courts have reached this conclusion, the Ninth Circuit, significantly, has not.

Moreover, one of the primary cases cited by Licensees for this propositionArnow v. NRC, 868 F.2d 223 (7th Cir. 1989)was recently clarified by the Seventh Circuit (though Licensees inexplicably fail to notify the Court of this subsequent procedural history). Indeed, in Builders Bank v. FDIC, 846 F.3d 272, 274-75 (7th Cir. 2017), the court clarified that Arnows treatment of the question as jurisdictional was simply loose usage, and held that whether an action is committed to agency discretion by law is a merits question, not a question regarding the courts subject matter jurisdiction. Thus, even if the NRCs final action on the 2.206 petition is construed as a matter committed to 6

Case: 19-72670, 12/16/2019, ID: 11534102, DktEntry: 17, Page 11 of 26 agency discretion by law, that would not mean that the Court lacks jurisdiction to review the NRCs final action on the petition.2 In sum, the plain language of the Atomic Energy Act and the Hobbs Act, as well as binding Supreme Court precedent unambiguously establish that this Court will have jurisdiction to review the NRCs final action on Petitioners 2.206 petition.

2 In addition, even assuming the NRCs final action on Petitioners 2.206 petition were presumptively unreviewable, that presumption would be rebutted in this case because the NRC has consciously and expressly adopted a general policy that is so extreme as to amount to an abdication of its statutory responsibilities. See Heckler v. Chaney, 470 U.S. 821, 833, n. 4 (1985). Specifically, as discussed at length in Petitioners Emergency Mandamus Petition, the NRCs various actions permitting the decommissioning of SONGS and the burial of spent nuclear fuel in the SONGS ISFSI are predicated on the arbitrary and indisputably false assumptions that the spent nuclear fuel buried at SONGS will be accepted by the Department of Energy and transported to a permanent repository in the near future. This arbitrary assumption has tainted all decisions made by the NRC related to the SONGS decommissioning including, but not limited to, the approval of canisters and a storage system with a limited shelf life, the approval of the precarious location for the SONGS ISFSI, and the approval of Licensees decommissioning trust fundand constitutes an abdication of the NRCs paramount statutory obligation to protect public health and safety. In any event, whether the presumption of unreviewability can be overcome is a question regarding the merits of the ultimate appeal from the NRCs final action on the 2.206 petition, not a question of this Courts jurisdiction to review that final action.

7

Case: 19-72670, 12/16/2019, ID: 11534102, DktEntry: 17, Page 12 of 26 B. Petitioners 2.206 petition is neither untimely nor precluded by prior SONGS litigation.

Licensees also seek to evade meaningful review of Petitioners 2.206 petition by arguing that the petition is untimely and suggesting that the issues raised in the petition have already been resolved by prior litigation. See Edison Ans. at 6-8. These arguments miss the mark and are intended only to distract from the real issues at hand.

Under 10 C.F.R. 2.206(a), [a]ny person may file a request to institute a proceeding pursuant to § 2.202 to modify, suspend, or revoke a license, or for any other action as may be proper. Neither § 2.206 nor any other NRC regulation specifies a deadline by which such petitions must be filed, and at least one circuit court has acknowledged that a 2.206 petition may be filed at any time. Union of Concerned Scientists v.

NRC, 880 F.2d 552, 560 (D.C. Cir. 1989). Thus, Licensees contention that Petitioners 2.206 petition was untimely is entirely without merit.

Likewise, Licensees are wrong to suggest that Petitioners 2.206 petition is somehow precluded, or in any way impacted, by prior litigation concerning the numerous public safety issues at SONGS. Although Petitioners prior lawsuits against the NRC and Licensees did concern many of the same facts regarding Licensees various decommissioning 8

Case: 19-72670, 12/16/2019, ID: 11534102, DktEntry: 17, Page 13 of 26 debacles and the failures in oversight that enabled those debacles, neither lawsuit addressed the core allegations of Petitioners 2.206 petitionnamely, that the conception and implementation of the entire decommissioning plan at SONGS are irreparably tainted by the arbitrary and demonstrably false assumption that spent nuclear fuel will be stored at SONGS only temporarily. Whats more, in the most recent lawsuit between Petitioner, Licensees, and the NRC, Licensees argued that the district court was not a proper forum for Petitioners claims because Petitioner failed to exhaust its available remedies under 10 C.F.R. §§ 2.206 and 2.802. See Public Watchdogs v. United States, et al., No. 19-cv-1635-JLS, ECF Doc. 34-1 at 10. It is disingenuous for Licensees to argue to the district court that Petitioner is required to avail itself of remedies under § 2.206 and then suggest to this Court that the district court litigation somehow precludes Petitioner from seeking relief under § 2.206. Finally, it is important to note that the NRC also took the position in the district court that Petitioners claims should be brought in a 2.206 petition or in a petition for rulemaking under 10 C.F.R. § 2.802. See NRC Ans. at 10. Thus, the NRC plainly disagrees with Licensees that 9

Case: 19-72670, 12/16/2019, ID: 11534102, DktEntry: 17, Page 14 of 26 Petitioners 2.206 petition is somehow precluded by prior litigation concerning the various public safety issues at SONGS.

C. The Court will lose jurisdiction absent an order temporarily suspending the burial of spent nuclear fuel at SONGS.

A case becomes moot when it is impossible for a court to grant any effectual relief whatever to the prevailing party. Campbell-Ewald Co.

v. Gomez, 136 S. Ct. 663, 669 (2016). Here, the NRCs and Licensees own admissions confirm that this case will become moot, and the Court will be stripped of its jurisdiction to consider the NRCs final action on Petitioners 2.206 petition, absent an immediate order temporarily suspending the burial of spent nuclear fuel at SONGS.

Specifically, the NRC states that it has channeled the 2.206 Petition into the agencys regular process for considering such input.

NRC Ans. at 1. In addition, the NRC states that it has an aspirational goal of reaching a final decision on 2.206 petitions within 165 days of a petition being assigned to the appropriate decision maker by its Office of Executive Director of Operations. NRC Ans. at 14. For its part, the Licensees represent that they anticipate all spent nuclear fuel will be transferred from the relative safety of the wet storage pools to the 10

Case: 19-72670, 12/16/2019, ID: 11534102, DktEntry: 17, Page 15 of 26 SONGS ISFSI, and that the wet storage pools will be demolished, sometime in the summer of 2020. Edison Ans. at 11-20. Thus, even if the NRC meets its aspirational goal of resolving the 2.206 petition within 165 days, it will not take final action until April or May 2020. By that time, most, if not all, of the spent nuclear fuel will be removed from the wet storage pools and transferred to the SONGS ISFSI, and the wet storage pools will be demolished shortly thereafter. Once the spent nuclear fuel is transferred to the SONGS ISFSI and the wet storage pools are demolished, it will be impossible for the Court to grant Petitioner any effectual relief on its 2.206 petition. Indeed, by that time, the proverbial ticking time bomb will have been set and the relief Petitioner seeks via its 2.206 petition will be unavailable. Accordingly, the only way to protect the Courts jurisdiction over the NRCs final action on the 2.206 petition is to enter an order temporarily suspending the burial of spent nuclear fuel at SONGS.

2. An order temporarily suspending the burial of spent nuclear fuel at SONGS is warranted under the applicable legal standards.

The NRC and Licensees argue both that the TRAC factors do not govern the Courts analysis and that Petitioner has failed to satisfy those 11

Case: 19-72670, 12/16/2019, ID: 11534102, DktEntry: 17, Page 16 of 26 factors in any event. In addition, the NRC argues that the only relief the Court could possibly grant in this case is an order requiring the NRC to act on the 2.206 petition by a date certain. As discussed below, the NRC and Licensees are wrong on all counts.

A. The TRAC factors govern the Courts analysis.

The Court generally employees a three-part test to determine whether to grant mandamus relief: (1) whether the plaintiffs claim is clear and certain; (2) whether the duty is ministerial and so plainly prescribed as to be free from doubt; and (3) whether any other adequate remedy is available. In re Cal. Power Exchange Corp., 245 F.3d at 1120.

To satisfy this test, the party seeking relief must show that its right to issuance of the writ is clear and indisputable. Id.

The Court employs a different test, however, when a party seeks mandamus relief because agency action has been delayed to such an extent as to frustrate the courts role of providing a forum for review. Id.

at 1124-25. In these cases, the Court applies the six TRAC factors. In re Pesticide Action Network, 798 F.3d 809, 813 (9th Cir. 2015). Indeed, the Court has expressly held that the standards for mandamus relief in cases 12

Case: 19-72670, 12/16/2019, ID: 11534102, DktEntry: 17, Page 17 of 26 of unreasonable agency delay are different than the traditional three-part mandamus test. In re Cal. Power Exchange Corp., 245 F.3d at 1125.

Although Petitioner clearly seeks mandamus relief under the All Writs Act to protect the Courts jurisdiction from the NRCs unreasonable delay in taking final action on Petitioners 2.206 petition, Licensees argue that the TRAC factors do not apply because the nature of relief requested by Petitioner is akin to injunctive relief. See Edison Ans. at 23-25.

According to Licensees, Petitioner must meet the traditional standard for obtaining an injunction, including that it has an indisputably clear right to ultimate relief on the merits, in order to obtain the relief requested in its Emergency Mandamus Petition. Licensees are wrong for at least two reasons.

First, even if the relief requested by Petitioner is characterized as injunctive relief, [t]he requirements for a traditional injunction do not apply to injunctions under the All Writs Act because a courts traditional power to protect its jurisdiction, codified by the Act, is grounded in entirely separate concerns. Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1000 (11th Cir. 2004) (collecting cases); see also In re Baldwin-United Corp., 770 F.2d 328, 339 (2d Cir. 1985) (explaining that Rule 65 13

Case: 19-72670, 12/16/2019, ID: 11534102, DktEntry: 17, Page 18 of 26 does not apply to injunctions issued under the All-Writs Act). This Court recently confirmed as much in Makekau v. State, No. 17-16360, 2019 WL 6316672 (9th Cir. Nov. 26, 2019). There, the Court held that plaintiffs who obtained a preliminary injunction from the Supreme Court under the All Writs Act were not prevailing parties for purposes of an attorney fee award because the injunction did not find that plaintiffs were likely to prevail on the merits of their claims, which is an essential prerequisite to traditional injunctive relief. Id. at *3-*4; see also Ind. Living Cntr. of S. Cal., Inc. v. Shewry, 543 F.3d 1047, 1049 (9th Cir. 2008) (explaining that a party seeking traditional injunctive relief must show some combination of probable success on the merits and the possibility of irreparable harm). Thus, the Court implicitly acknowledged, just as other circuit courts have expressly acknowledged, that the standards for obtaining traditional injunctive relief do not apply when injunctive relief is sought under the All Writs Act. See Makekau, 2019 WL 6316672, at

• 8 (Smith, J., concurring) (the Court has authority to issue [All Writs Act] interlocutory injunctions without applying the indisputably clear standard (whatever that standard may entail), and indeed without reaching the merits of the underlying legal challenge).

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Case: 19-72670, 12/16/2019, ID: 11534102, DktEntry: 17, Page 19 of 26 Second, as noted above, this Court has expressly held that the TRAC factors, not the traditional test for mandamus relief, govern in cases of unreasonable agency delay. See In re Cal. Power Exchange Corp.,

245 F.3d at 1125. And there can be no question that the gravamen of Petitioners Emergency Mandamus Petition is that the NRC has unreasonably delayed in taking final action on the 2.206 petition in order to strip this Court of jurisdiction to consider the merits of the petition.

Thus, Licensees attempt to impose the more stringent indisputably clear standard on Petitioner is unavailing. The TRAC factors govern the Courts analysis.

B. The TRAC factors are satisfied.

In determining whether the NRC has unreasonably delayed in acting on Petitioners 2.206 petition, the Court is required to consider all six of the TRAC factors. In re A Community Voice, 878 F.3d 779, 786 (9th Cir. 2017). However, the first factor, the rule of reason, is the most important. Id.

The NRC argues that the rule of reason has not been violated because it provided an initial response to Petitioners 2.206 petition 31 days after it was filed and has been considering the petition for less than 15

Case: 19-72670, 12/16/2019, ID: 11534102, DktEntry: 17, Page 20 of 26 three months. NRC Ans. at 13-14. According to the NRC, an agency must delay action for years, not months, in order to violate the rule of reason. NRC Ans. at 13-14. This argument wrongly presupposes that the reasonableness of an agencys delay is considered in a vacuum, rather than in the context of the specific circumstances of a given case. Indeed, the issue of whether an agencys delay comports with the rule of reason cannot be decided in the abstract, by reference to some number of months or years beyond which agency inaction is presumed to be unlawful. Mashpee Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d 1094, 1102 (D.C. Cir. 2003). As the third TRAC factor expressly provides, delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake. In re A Community Voice, 878 F.3d at 786. When considered in light of the undisputed fact that Licensees intend to bury all spent nuclear fuel at SONGS and destroy the only other viable storage option in the next few months, the NRCs continued delay in taking final action on Petitioners 2.206 petition plainly violates the rule of reason.

The third TRAC factor also weighs heavily in favor of granting mandamus relief. In fact, the NRC correctly acknowledges that 16

Case: 19-72670, 12/16/2019, ID: 11534102, DktEntry: 17, Page 21 of 26 Petitioner has undoubtedly raised concerns that implicate the public health and safety. NRC Ans. at 15. The NRC wrongly argues, however, that mandamus relief is only warranted when the agency agrees that urgent concerns of public health and safety exist. NRC Ans. at 15. This is nonsense. If the NRC were correct, mandamus relief to address unreasonable agency delay would never be available. Regardless of whether the NRC agrees, the risk of continuing to bury spent nuclear fuel at SONGS in defective and damaged canisters, feet from the Pacific Ocean, between active fault lines, and pursuant to a decommissioning plan that falsely assumes the storage will be temporary, is not only self-evident, but it is also a real and present danger to millions of Southern California residents.

The remaining TRAC factors also support mandamus relief. The NRC does not contend that it would be hindered in pursuing agency activities of a higher or competing priority if it were to temporarily halt the burial of spent nuclear fuel at SONGS. Moreover, as has been discussed at length, the interests prejudiced by the continued burial of spent nuclear fuel at SONGS, which is enabled by the NRCs delay, could not be more important. Finally, though there need not be impropriety 17

Case: 19-72670, 12/16/2019, ID: 11534102, DktEntry: 17, Page 22 of 26 lurking behind the NRCs delay, the circumstances suggest that the NRC is delaying taking final action on Petitioners 2.206 petition in order to run out the clock and strip the Court of jurisdiction to review its final action. Indeed, the NRC failed to even acknowledge Petitioners 2.206 petition until after Petitioner filed and served its Emergency Mandamus Petition. See Decl. of Eric Beste, Dkt. Entry 7. It was only at that point that the NRC made a determination that the 2.206 petition did not raise immediate public safety concerns, which conveniently set up some of the arguments the NRC now makes to this Court. Furthermore, if Petitioners 2.206 petition is so facially unfounded, as the NRC contends, there is no other explanation for the NRCs delay in taking final action on the petition.

In short, the TRAC factors weigh heavily in favor of granting mandamus relief.

C. The Court has authority under the All Writs Act to temporarily suspend the burial of spent nuclear fuel at SONGS.

The NRC also contends that, even if the TRAC factors are satisfied, the Court does not have authority to suspend the burial of spent nuclear fuel at SONGS in order to protect its jurisdiction. Rather, the NRC 18

Case: 19-72670, 12/16/2019, ID: 11534102, DktEntry: 17, Page 23 of 26 claims the only relief that Petitioner could possibly obtain in this proceeding is an order requiring the NRC to take final action on the 2.206 petition by a date certain. NRC Ans. at 17-18. Once again, the NRC is wrong.

Although an order compelling agency action by a date certain is a common remedy in cases involving unreasonable agency delay, the NRC fails to cite a single case holding that this is the only remedy a court can provide to protect its jurisdiction from a recalcitrant agency. Whats more, the NRCs argument is belied by the plain language of the All Writs Act, which states that federal courts may issue all writs necessary or appropriate in aid of their respective jurisdictions. 28 U.S.C. § 1651(a)(emphasis added). Finally, in Three Mile Island, the Third Circuit expressly endorsed the very relief that Petitioner seeks in this case. Specifically, the court opined that the plaintiff could have asked the NRC to act, see 10 C.F.R. s 2.206(a), and could have asked the appropriate court of appeals to grant pendent lite relief while NRC considered the case. Three Mile Island, 619 F.2d at 237. That is precisely the relief Petitioner seeks here, and the NRC is wrong in arguing that the Court is powerless to provide it.

19

Case: 19-72670, 12/16/2019, ID: 11534102, DktEntry: 17, Page 24 of 26 CONCLUSION As noted at the outset, it is difficult to conceive of a more extraordinary case than this. Based on false assumptions that spent nuclear fuel will be buried at SONGS only temporarily, the NRC is permitting Licensees to transfer hundreds of tons of one of the deadliest substances known to mankind from the relative safety of wet storage pools to the most hazardous location possiblea mere 108 feet from the Pacific Ocean, in a tsunami inundation zone surrounded by active fault lines, and in damaged and defective canisters that Licensees, through their documented gross negligence, have already almost dropped on at least two occasions. Although the continued burial of spent nuclear fuel at SONGS plainly imperils the lives of millions of people who reside in nearby communities, the NRC and Licensees are determined to complete the burial in the next few months in order to deprive this Court of jurisdiction to review the myriad grave issues raised in Petitioners 2.206 petition. Once the spent nuclear fuel is buried at SONGS and the wet storage pools are demolished, this Court will be powerless to grant the relief Petitioner seeks in its 2.206 petition and to protect the millions of Southern California residents whose lives are jeopardized by the NRCs 20

Case: 19-72670, 12/16/2019, ID: 11534102, DktEntry: 17, Page 25 of 26 and Licensees reckless course of action. The time to prevent this impending disaster is now. The Court should grant Petitioners Emergency Petition for Writ of Mandamus and temporarily suspend the burial of spent nuclear fuel at SONGS.

Dated: December 16, 2019 Respectfully submitted, BARNES & THORNBURG LLP By: /s/ Charles G. La Bella Charles G. La Bella Eric J. Beste Attorneys for Petitioner PUBLIC WATCHDOGS 21

Case: 19-72670, 12/16/2019, ID: 11534102, DktEntry: 17, Page 26 of 26 CERTIFICATE OF COMPLIANCE I hereby certify that this brief complies with the requirements of Ninth Circuit Rules 21-2(c) and 32-3, and the requirements of the Federal Rules of Appellate Procedure, because it is proportionately spaced, has a typeface of 14 points, and has 4,383 words.

/s/ Charles G. La Bella Charles G. La Bella 22