ML21013A330
| ML21013A330 | |
| Person / Time | |
|---|---|
| Site: | San Onofre  |
| Issue date: | 01/13/2021 |
| From: | US Federal Judiciary, Court of Appeals, 9th Circuit |
| To: | James Adler, Andrew Averbach NRC/OGC, Public Watchdogs |
| References | |
| 11961730, 20-70899, DktEntry: 65-1 | |
| Download: ML21013A330 (8) | |
Text
NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT PUBLIC WATCHDOGS, Petitioner,
- v.
U.S. NUCLEAR REGULATORY COMMISSION; UNITED STATES OF AMERICA, Respondents, SOUTHERN CALIFORNIA EDISON COMPANY, Intervenor.
No.
20-70899 MEMORANDUM*
On Petition for Review of an Order of the Nuclear Regulatory Commission Argued and Submitted September 1, 2020 Pasadena, California Before: SILER,** BERZON, and LEE, Circuit Judges.
Public Watchdogs petitions for review of the U.S. Nuclear Regulatory This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
The Honorable Eugene E. Siler, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
FILED JAN 13 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS Case: 20-70899, 01/13/2021, ID: 11961730, DktEntry: 65-1, Page 1 of 4 (1 of 8)
2 Commissions (the NRCs) denial of its petition under 10 C.F.R. § 2.206 for an order suspending decommissioning operations at the San Onofre Nuclear Generating Station (SONGS). We dismiss the petition for review.
Public Watchdogs does not dispute the NRCs characterization of the denial of the § 2.206 petition as a decision not to institute an enforcement proceeding.
Such a decision is presumptively unreviewable unless the NRC has consciously and expressly adopted a general policy that is so extreme as to amount to an abdication of its statutory responsibilities or there is law providing meaningful standards for defining the limits of [the NRCs] discretion in declining to take enforcement action. Heckler v. Chaney, 470 U.S. 821, 833 n.4, 834 (1985)
(internal quotation marks omitted).
Public Watchdogs has not demonstrated that the NRC has abdicated its duty to ensure that spent nuclear fuel is stored safely at SONGS. The NRC addressed the issues raised by Public Watchdogs, including the possibility that the federal government might never develop a permanent repository for spent nuclear fuel and, consequently, that spent fuel might be stored at nuclear reactor sites indefinitely, in its Generic Environmental Impact Statement for Continued Storage of Spent Nuclear Fuel (the Continued Storage GEIS). The Continued Storage GEIS recognized that spent fuel maintained in dry storage would eventually need to be transferred to new containers, but it estimated that the transfer would need to Case: 20-70899, 01/13/2021, ID: 11961730, DktEntry: 65-1, Page 2 of 4 (2 of 8)
3 be made only once every one hundred years. The D.C. Circuit upheld the Continued Storage GEIS, concluding, among other things, that the NRC reasonably determined that the identified risks [were] essentially common to all reactor sites. New York v. NRC, 824 F.3d 1012, 1019 (D.C. Cir. 2016) (internal quotation marks omitted).
Additionally, the NRC addressed safety concerns relating to the specific dry cask storage system used at SONGS in its notice-and-comment rulemaking issuing a certificate of compliance for that storage system and in its inspection reports reviewing the decommissioning activities at SONGS. Finally, the NRC requires SONGSs operator to provide updated financial assurances every year, along with an updated estimate of the costs required to complete decommissioning. See 10 C.F.R. § 50.82(a)(8)(v). Whatever validity Public Watchdogs critiques of the NRCs analyses and determinations may have, those critiques fall far short of demonstrating that the NRC has abdicated its statutory duties.
Public Watchdogs contention that the NRCs regulations and policies provide a meaningful standard against which to judge the NRCs exercise of discretion also fails. Public Watchdogs does not point to any specific language indicating an intent to circumscribe the NRCs discretion in deciding whether to take an enforcement action. See Heckler, 470 U.S. at 833-35.
Public Watchdogs has not overcome the presumption that the NRCs denial Case: 20-70899, 01/13/2021, ID: 11961730, DktEntry: 65-1, Page 3 of 4 (3 of 8)
4 of the § 2.206 petition is unreviewable. We therefore must dismiss the petition for review.
PETITION DISMISSED.
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1 Post Judgment Form - Rev. 12/2018 United States Court of Appeals for the Ninth Circuit Office of the Clerk 95 Seventh Street San Francisco, CA 94103 Information Regarding Judgment and Post-Judgment Proceedings Judgment This Court has filed and entered the attached judgment in your case.
Fed. R. App. P. 36. Please note the filed date on the attached decision because all of the dates described below run from that date, not from the date you receive this notice.
Mandate (Fed. R. App. P. 41; 9th Cir. R. 41-1 & -2)
The mandate will issue 7 days after the expiration of the time for filing a petition for rehearing or 7 days from the denial of a petition for rehearing, unless the Court directs otherwise. To file a motion to stay the mandate, file it electronically via the appellate ECF system or, if you are a pro se litigant or an attorney with an exemption from using appellate ECF, file one original motion on paper.
Petition for Panel Rehearing (Fed. R. App. P. 40; 9th Cir. R. 40-1)
Petition for Rehearing En Banc (Fed. R. App. P. 35; 9th Cir. R. 35-1 to -3)
(1)
A.
Purpose (Panel Rehearing):
A party should seek panel rehearing only if one or more of the following grounds exist:
A material point of fact or law was overlooked in the decision;
A change in the law occurred after the case was submitted which appears to have been overlooked by the panel; or
An apparent conflict with another decision of the Court was not addressed in the opinion.
Do not file a petition for panel rehearing merely to reargue the case.
B.
Purpose (Rehearing En Banc)
A party should seek en banc rehearing only if one or more of the following grounds exist:
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2 Post Judgment Form - Rev. 12/2018
Consideration by the full Court is necessary to secure or maintain uniformity of the Courts decisions; or
The proceeding involves a question of exceptional importance; or
The opinion directly conflicts with an existing opinion by another court of appeals or the Supreme Court and substantially affects a rule of national application in which there is an overriding need for national uniformity.
(2)
Deadlines for Filing:
A petition for rehearing may be filed within 14 days after entry of judgment. Fed. R. App. P. 40(a)(1).
If the United States or an agency or officer thereof is a party in a civil case, the time for filing a petition for rehearing is 45 days after entry of judgment.
Fed. R. App. P. 40(a)(1).
If the mandate has issued, the petition for rehearing should be accompanied by a motion to recall the mandate.
See Advisory Note to 9th Cir. R. 40-1 (petitions must be received on the due date).
An order to publish a previously unpublished memorandum disposition extends the time to file a petition for rehearing to 14 days after the date of the order of publication or, in all civil cases in which the United States or an agency or officer thereof is a party, 45 days after the date of the order of publication. 9th Cir. R. 40-2.
(3)
Statement of Counsel A petition should contain an introduction stating that, in counsels judgment, one or more of the situations described in the purpose section above exist. The points to be raised must be stated clearly.
(4)
Form & Number of Copies (9th Cir. R. 40-1; Fed. R. App. P. 32(c)(2))
The petition shall not exceed 15 pages unless it complies with the alternative length limitations of 4,200 words or 390 lines of text.
The petition must be accompanied by a copy of the panels decision being challenged.
An answer, when ordered by the Court, shall comply with the same length limitations as the petition.
If a pro se litigant elects to file a form brief pursuant to Circuit Rule 28-1, a petition for panel rehearing or for rehearing en banc need not comply with Fed. R. App. P. 32.
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3 Post Judgment Form - Rev. 12/2018 The petition or answer must be accompanied by a Certificate of Compliance found at Form 11, available on our website at www.ca9.uscourts.gov under Forms.
You may file a petition electronically via the appellate ECF system. No paper copies are required unless the Court orders otherwise. If you are a pro se litigant or an attorney exempted from using the appellate ECF system, file one original petition on paper. No additional paper copies are required unless the Court orders otherwise.
Bill of Costs (Fed. R. App. P. 39, 9th Cir. R. 39-1)
The Bill of Costs must be filed within 14 days after entry of judgment.
See Form 10 for additional information, available on our website at www.ca9.uscourts.gov under Forms.
Attorneys Fees Ninth Circuit Rule 39-1 describes the content and due dates for attorneys fees applications.
All relevant forms are available on our website at www.ca9.uscourts.gov under Forms or by telephoning (415) 355-7806.
Petition for a Writ of Certiorari Please refer to the Rules of the United States Supreme Court at www.supremecourt.gov Counsel Listing in Published Opinions Please check counsel listing on the attached decision.
If there are any errors in a published opinion, please send a letter in writing within 10 days to:
Thomson Reuters; 610 Opperman Drive; PO Box 64526; Eagan, MN 55123 (Attn: Jean Green, Senior Publications Coordinator);
and electronically file a copy of the letter via the appellate ECF system by using File Correspondence to Court, or if you are an attorney exempted from using the appellate ECF system, mail the Court one copy of the letter.
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UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Form 10. Bill of Costs Instructions for this form: http://www.ca9.uscourts.gov/forms/form10instructions.pdf 9th Cir. Case Number(s)
Case Name The Clerk is requested to award costs to (party name(s)):
I swear under penalty of perjury that the copies for which costs are requested were actually and necessarily produced, and that the requested costs were actually expended.
Signature Date (use s/[typed name] to sign electronically-filed documents)
COST TAXABLE REQUESTED (each column must be completed)
DOCUMENTS / FEE PAID No. of Copies Pages per Copy Cost per Page TOTAL COST Excerpts of Record*
Principal Brief(s) (Opening Brief; Answering Brief; 1st, 2nd, and/or 3rd Brief on Cross-Appeal; Intervenor Brief)
Reply Brief / Cross-Appeal Reply Brief Supplemental Brief(s)
Petition for Review Docket Fee / Petition for Writ of Mandamus Docket Fee TOTAL: $
- Example: Calculate 4 copies of 3 volumes of excerpts of record that total 500 pages [Vol. 1 (10 pgs.) +
Vol. 2 (250 pgs.) + Vol. 3 (240 pgs.)] as:
No. of Copies: 4; Pages per Copy: 500; Cost per Page: $.10 (or actual cost IF less than $.10);
TOTAL: 4 x 500 x $.10 = $200.
Feedback or questions about this form? Email us at forms@ca9.uscourts.gov Form 10 Rev. 12/01/2018 Case: 20-70899, 01/13/2021, ID: 11961730, DktEntry: 65-2, Page 4 of 4 (8 of 8)