ML20120A035

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4-27-20 SCE Motion for Judicial Notice (9th Cir.)(Case No. 20-70899)
ML20120A035
Person / Time
Site: San Onofre  Southern California Edison icon.png
Issue date: 04/27/2020
From: Akerman A, Casey E, Jonathan Evans
Alston & Bird LLP, Southern California Edison Co
To: Andrew Averbach
NRC/OGC, US Federal Judiciary, Court of Appeals, 9th Circuit
References
11673521, 20-70899
Download: ML20120A035 (15)
v • d • e


Text

Case: 20-70899, 04/27/2020, ID: 11673521, DktEntry: 20, Page 1 of 725 No. 20-70899 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT IN RE PUBLIC WATCHDOGS, Petitioner, v.

UNITED STATES NUCLEAR REGULATORY COMMISSION, Respondent.

SOUTHERN CALIFORNIA EDISON COMPANY, Intervenor.

SOUTHERN CALIFORNIA EDISONS MOTION FOR JUDICIAL NOTICE IN SUPPORT OF ITS ANSWER TO MOTION FOR TEMPORARY INJUNCTIVE RELIEF PENDING JUDICIAL REVIEW EDWARD J. CASEY (SBN 119571)

JAMES R. EVANS, JR. (SBN 119712)

ALEXANDER AKERMAN (SBN 280308)

ALSTON & BIRD LLP 333 South Hope Street, 16th Floor Los Angeles, California 90071 Telephone: (213) 576-1000 Fax: (213) 576-1100 Emails: Ed.Casey@alston.com James.Evans@alston.com Alex.Akerman@alston.com Attorneys for SOUTHERN CALIFORNIA EDISON COMPANY

Case: 20-70899, 04/27/2020, ID: 11673521, DktEntry: 20, Page 2 of 725 TABLE OF CONTENTS I. MOTION TO TAKE JUDICIAL NOTICE ....................................................1 II. DISCUSSION ..................................................................................................6 A. THE COURT SHOULD TAKE JUDICIAL NOTICE OF THE DOCUMENTS THAT FORM THE BASIS OF THE NRCS DECISION DENYING THE 2.206 PETITION SINCE IT IS RELEVANT TO PETITIONERS WRIT FOR MANDATORY INJUNCTION .......................................................................................6 i

Case: 20-70899, 04/27/2020, ID: 11673521, DktEntry: 20, Page 3 of 725 TABLE OF AUTHORITIES Page(s)

Federal Cases Disabled Rights Action Comm. v. Las Vegas Events, Inc.,

375 F.3d 861 (9th Cir. 2004) ................................................................................ 6 Jamul Action Comm. v. Stevens, No. 2:13-cv-01920-KJM-KJN, 2014 U.S. Dist. LEXIS 107582 (E.D. Cal. Aug. 4, 2014) ....................................................................................... 7 Mack v. S. Bay Beer Distribs., Inc.,

798 F.2d 1279 (9th Cir. 1986) .............................................................................. 6 U.S. ex rel. Modglin v. DJO Glob. Inc.,

48 F. Supp. 3d 1362 (C.D. Cal. 2014), affd sub nom. United States

v. DJO Glob., Inc., 678 F. Appx 594 (9th Cir. 2017) ......................................... 8 Or. Nat. Desert Assn v. BLM, 531 F.3d 1114 (9th Cir. 2008) (Noticing the 2005 [Bureau of Land Management] Handbook.) ......................................................................... 6 Public Watchdogs v. Southern California Edison Co.,

Case No. 19-56531 (9th Cir.)................................................................................ 1 Transmission Agency v. Sierra Pac. Power Co.,

295 F.3d 918 (9th Cir. 2002) ................................................................................ 7 United States v. 14.02 Acres, 547 F.3d 943 (9th Cir. 2008) ................................................................................ 6 Federal Statutes 44 U.S.C. § 1501. ....................................................................................................... 7 44 U.S.C.§ 1507 ......................................................................................................... 7 Other Authorities 10 C.F.R. § 2.206 ....................................................................................................... 1 ii

Case: 20-70899, 04/27/2020, ID: 11673521, DktEntry: 20, Page 4 of 725 F.R.A.P.16(a)(2)......................................................................................................... 8 Fed. R. Evide 201 ........................................................................................1, 2, 6, 7 8 Ninth Circuit Rule 27-1.......................................................................................... 1, 8 iii

Case: 20-70899, 04/27/2020, ID: 11673521, DktEntry: 20, Page 5 of 725 I. MOTION TO TAKE JUDICIAL NOTICE Pursuant to Federal Rule of Evidence 201 and Circuit Rule 27-1, Intervenor Southern California Edison Company (SCE) hereby respectfully request that the Court take judicial notice of the documents and facts therein submitted in support of Intervenors Answer to Petitioners Motion for Temporary Injunctive Relief Pending Judicial Review.1 The documents listed below in paragraphs 1 through 21 consist of documents cited in the NRCs letter dated February 26, 2020 (the NRC Denial Letter) that denied the petition filed pursuant to 10 C.F.R. Section 2.206 by petitioner Public Watchdogs (petitioner). (The NRCs decision denying the 2.206 petition is the subject of this appeal by petitioner.) Exhibits 5-13 and 18-19 were the subject of a motion to take judicial notice filed in the related case Public Watchdogs v. Southern California Edison Co., Case No. 19-56531 (9th Cir.),

which this court granted on April 2, 2020 (Appeal No. 19-56531, Dkt. No. 37).

(An additional 95 documents are cited in the documents listed in the NRC denial letter, which supporting reference documents may be included in the administrative record to be filed by the NRC.)

1 SCE contacted petitioners counsel on April 27, 2020 via electronic mail and asked whether petitioner opposed this motion. At time of filing, petitioner has not provided a response.

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Case: 20-70899, 04/27/2020, ID: 11673521, DktEntry: 20, Page 6 of 725

1. October 25, 2019 NRC Response to Public Watchdogs 10 CFR 2.206 Petition - SONGS Immediate Action Determination. (ADAMS No.

ML19326A969), cited to by the NRC on page 1 of its Denial Letter (APP000007).

A copy is attached as Exhibit 1.2

2. Management Directive 8.11, "Review Process for 10 CFR 2.206 Petitions." (ADAMS No. ML18296A043), cited to by the NRC on page 1 of its Denial Letter (APP000007). A copy is attached hereto as Exhibit 2.
3. December 18, 2019 Public Watchdogs 10 CFR 2.206 Petition SONGS

- PRB Initial Assessment Results. (ADAMS No. ML19353A048), cited to by the NRC on page 2 of its Denial Letter (APP000008). A copy is attached hereto as Exhibit 3.

4. Public Watchdogs 10 CFR 2.206 Petition - SONGS January 21, 2020 Public Meeting Transcript. (ADAMS No. ML20028E467), cited to by the NRC on page 2 of its Denial Letter (APP000008). A copy is attached hereto as Exhibit 4.
5. January 6, 2017 Letter to Kimberly Manzione, P.E. re: HI-STORM UMAX Canister Storage System Amendment Request No. 2, Issuance (CAC No.

L25007) cited to by the NRC on page 2 of its Denial Letter (APP000008).

(ADAMS No. ML16341B061).3 2

ADAMS refers to the NRCs Agencywide Documents Access and Management 3

System available to the public at https://adams.nrc.gov/wba/

ADAMS Accession No. ML16341B061 compromises the U.S. Nuclear 2

Case: 20-70899, 04/27/2020, ID: 11673521, DktEntry: 20, Page 7 of 725

6. January 6, 2017 Letter to Kimberly Manzione, P.E. re: HI-STORM UMAX Canister Storage System Amendment Request No. 2, Issuance (CAC No.

L25007). (ADAMS No. ML16341B077) attached hereto as Exhibit 5.

7. Enclosure 1 to January 6, 2017 Letter to Kimberly Manzione, P.E.:

CoC No. 1040, Amendment No. 2. (ADAMS No. ML16341B080) attached hereto as Exhibit 6.

8. Enclosure 2 to January 6, 2017 Letter to Kimberly Manzione, P.E.:

Safety Evaluation Report. (ADAMS No. ML16341B129) attached hereto as Exhibit 7.

9. Appendix A to January 6, 2017 Letter to Kimberly Manzione, P.E.:

Technical Specifications. (ADAMS No. ML16341B100) attached hereto as Exhibit 8.

10. Appendix B to January 6, 2017 Letter to Kimberly Manzione, P.E.:

Approved Contents and Design Features for the HI-STORM IMAX Canister Storage System. (ADAMS No. ML16341B107) attached hereto as Exhibit 9.

11. August 24, 2018 San Onofre Nuclear Generating Station - NRC Inspection Report. (ADAMS No. ML18200A400), cited to by the NRC on page 2 of its Denial Letter (APP000008). A copy is attached hereto as Exhibit 10.

Regulatory Commission January 6, 2017 Letter (ML16341B077), Certificate of Compliance for Spent Fuel Storage Casks, 72-1040, Amendment 2, January 9, 2017 (ML16341B080), Appendix A (ML16341B100), Appendix B (ML16341B107) and Safety Evaluation Report (ML16341B129).

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12. November 22, 2019 SONGS Independent Spent Fuel Storage Installation (ISFSI) Inspection Report. (ADAMS No. ML19316A762), cited to by the NRC on page 2 of its Denial Letter (APP000008). A copy is attached hereto as Exhibit 11.
13. July 9, 2019 Letter to SCE RE: SONGS - NRC Supplemental Inspection Report. (ADAMS No. ML19190A217), cited to by the NRC on page 2 of its Denial Letter (APP000008). A copy is attached hereto as Exhibit 12.
14. August 20, 2015 SONGS Unit No. 2 and 3 Review of Post-Shutdown Decommissioning Activities Report. (ADAMS No. ML15204A383), cited to by the NRC on page 2 of its Denial Letter (APP000008). A copy is attached hereto as Exhibit 13.
15. December 31, 2019 Summary of Staff Review and Findings of the 2019 Decommissioning Funding Status Reports from Operating and Decommissioning Power Reactor Licensees cited to by the NRC on page 3 of its Denial Letter (APP000008). (ADAMS No. ML19346E375)4.
16. December 31, 2019 Summary of Staff Review and Findings of the 2019 Decommissioning Funding Status Reports from Operating and Decommissioning Power Reactor Licensees. (ADAMS No. ML19346E378). A 4

ADAMS No. ML19346E375 compromises the U.S. Nuclear Regulatory Commission December 31, 2019 Summary (ML19346E378), Table 1 - 2019 Decommissioning Funding Status Report (ML19346E376) and Table 2 - 2019 Decommissioning Funding Status Report (ML19346E377).

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Case: 20-70899, 04/27/2020, ID: 11673521, DktEntry: 20, Page 9 of 725 copy is attached hereto as Exhibit 14.

17. Enclosure 1 - 2019 Decommissioning Funding Status Report Table 1 to the December 31, 2019 Summary of Staff Review and Findings of the 2019 Decommissioning Funding Status Reports from Operating and Decommissioning Power Reactor Licensees. (ADAMS No. ML19346E376). A copy is attached hereto as Exhibit 15.
18. Enclosure 2 - 2019 Decommissioning Funding Status Report Table 2 to the December 31, 2019 Summary of Staff Review and Findings of the 2019 Decommissioning Funding Status Reports from Operating and Decommissioning Power Reactor Licensees. (ADAMS No. ML19346E377). A copy is attached hereto as Exhibit 16.
19. August 19, 2015 NRC Staff Review of SONGS, Units 2 and 3 -

Review and Preliminary Approval of Irradiated Fuel Management Plan. (ADAMS No. ML15182A256), cited to by the NRC on page 3 of its Denial Letter (APP000009). A copy is attached hereto as Exhibit 17.

20. April 1981 "Final Environmental Statement related to the operation of San Onofre Nuclear Generating Station, Units 2 and 3 cited to by the NRC on page 3 of its Denial Letter (APP000009). (ADAMS No. ML18239A414). A copy is attached hereto as Exhibit 18.

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21. Issuance of Spent Fuel Management Division's Interim Staff Guidance No. 2, Revision 2, "Fuel Retrievability in Spent Fuel Storage Applications.".

(ADAMS No. ML16117A080), cited to by the NRC on page 3 of its Denial Letter (APP000009). A copy is attached hereto as Exhibit 19.

II. DISCUSSION A. THE COURT SHOULD TAKE JUDICIAL NOTICE OF THE DOCUMENTS THAT FORM THE BASIS OF THE NRCS DECISION DENYING THE 2.206 PETITION SINCE IT IS RELEVANT TO PETITIONERS WRIT FOR MANDATORY INJUNCTION Under Federal Rule of Evidence 201, the Court can take judicial notice of adjudicative fact that is not subject to reasonable dispute because it: (1) is generally known within the trial courts territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned at any stage of the proceeding. Agency documents are public records and/or government documents available from reliable sources whose accuracy cannot reasonably be questioned. United States v. 14.02 Acres, 547 F.3d 943, 955 (9th Cir. 2008) (Judicial notice is appropriate for records and reports of administrative bodies.); Disabled Rights Action Comm. v. Las Vegas Events, Inc.,

375 F.3d 861, 866 n.1 (9th Cir. 2004) (we may take judicial notice of the records of state agencies and other undisputed matters of public record.); Mack v. S. Bay 6

Case: 20-70899, 04/27/2020, ID: 11673521, DktEntry: 20, Page 11 of 725 Beer Distribs., Inc., 798 F.2d 1279, 1282 (9th Cir. 1986) (stating that a court may take judicial notice of records and reports of state administrative bodies). This Circuit has taken notice of agency documents similar to the exhibits here. See e.g.,

Or. Nat. Desert Ass'n v. BLM, 531 F.3d 1114, 1133 n.14 (9th Cir. 2008) (taking notice of the 2005 [Bureau of Land Management] Handbook.); Transmission Agency v. Sierra Pac. Power Co., 295 F.3d 918, 924 n.3 (9th Cir. 2002) (taking notice of administrative order).

Further, under 44 U.S.C. § 1507, [t]he contents of the Federal Register shall be judicially noticed. Further, publication of a document in the Federal Register creates a rebuttable presumption (1) that it was duly issued, prescribed, or promulgated; (2) that it was filed with the Office of the Federal Register and made available for public inspection at the date and hour stated in the printed notation; (3) that the copy contained in the Federal Register is a true copy of the original; and (4) that all requirements of 44 U.S.C. § 1501 et seq.

and the regulations prescribed under it relative to the document have been complied with. 44 U.S.C. § 1507; Jamul Action Comm. v. Stevens, No. 2:13-cv-01920-KJM-KJN, 2014 U.S. Dist. LEXIS 107582, at *11-13 n.2 (E.D. Cal. Aug. 4, 2014) (The court, sua sponte, takes judicial notice of the Federal Register list.

Fed. R. Evid. 201 (b), (c)(1). As a matter of public record, the Federal Register is "capable of accurate and ready determination by resort to sources whose accuracy 7

Case: 20-70899, 04/27/2020, ID: 11673521, DktEntry: 20, Page 12 of 725 cannot reasonably be questioned.)

Every document and fact that SCE requests this Court to take judicial notice of is (1) a publicly available Nuclear Regulatory Commission license, certificate, report, order, communication, or similar document related to an NRC proceeding or investigation and (2) available on the NRCs ADAMS database and/or published in the Federal Register and/or similar government website.5 See U.S. ex rel. Modglin v. DJO Glob. Inc., 48 F. Supp. 3d 1362, 1384 (C.D. Cal. 2014), aff'd sub nom. United States v. DJO Glob., Inc., 678 F. App'x 594 (9th Cir.

2017) ("Because all of these documents are available on the websites of government agencies or a government contractor, they are appropriate subjects of judicial notice."). Further these documents are part of the record in this case as any any findings or report on which [the NRC denial] is based is part of the agency record. F.R.A.P. 16(a)(2).

5 See also Circuit Advisory Committee Note to Rule 27-1(7) (Requests for judicial notice and responses filed during the pendency of the case are retained for review by the panel that will consider the merits of a case. The parties may refer to the materials the request addresses with the understanding that the Court may strike such references and related arguments if it declines to grant the request.)

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Case: 20-70899, 04/27/2020, ID: 11673521, DktEntry: 20, Page 13 of 725 Accordingly, SCE respectfully request that the Court take judicial notice of the documents attached as Exhibits 1-19 and as permitted by Federal Rule of Evidence 201 and Circuit Rule 27-1.

Dated: April 27, 2020 Respectfully submitted, ALSTON & BIRD LLP

/ s/ Edward J. Casey Edward J. Casey James R. Evans, Jr.

Alexander Akerman 333 South Hope Street, Sixteenth Floor Los Angeles, California 90071 Telephone: 213-576-1000 Fax: 213-576-1100 Ed.Casey@alston.com James.Evans@alston.com Alex.Akerman@alston.com Attorneys for Southern California Edison Company 9

Case: 20-70899, 04/27/2020, ID: 11673521, DktEntry: 20, Page 14 of 725 CERTIFICATE OF COMPLIANCE I hereby certify that this motion complies with the requirements of Ninth Circuit Rules 27-1(1)(d) and 32-3, and the requirements of Federal Rule of Appellate Procedure 27(d)(2), because it is proportionately spaced, has a typeface of 14 points, and has 1,764 words.

Dated: April 27, 2020 Respectfully submitted, ALSTON & BIRD LLP

/ s/ Edward J. Casey Edward J. Casey James R. Evans, Jr.

Alexander Akerman 333 South Hope Street, Sixteenth Floor Los Angeles, California 90071 Telephone: 213-576-1000 Fax: 213-576-1100 Ed.Casey@alston.com James.Evans@alston.com Alex.Akerman@alston.com Attorneys for Southern California Edison Company 10

Case: 20-70899, 04/27/2020, ID: 11673521, DktEntry: 20, Page 15 of 725 CERTIFICATE OF SERVICE I hereby certify that on April 27, 2020, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system.

Participants in the case who are registered CM/ECF users will be served by the appellate CM/ECF system.

Dated: April 27, 2020 Respectfully submitted, ALSTON & BIRD LLP

/ s/ Edward J. Casey Edward J. Casey James R. Evans, Jr.

Alexander Akerman 333 South Hope Street, Sixteenth Floor Los Angeles, California 90071 Telephone: 213-576-1000 Fax: 213-576-1100 Ed.Casey@alston.com James.Evans@alston.com Alex.Akerman@alston.com Attorneys for Southern California Edison Company 11

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