NOT FOR PUBLICATION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 APPEALS2

Commission’s (“ the NRC’s”) denial of its petition under 10 C.F.R. § 2.206 for an
order suspending decommissioning operations at the San Onofre Nuclear

G enerating Station (“SONGS”). We dismiss the petition for review.
Public Watchdogs does not dispute the NRC’s 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 respo nsibilities ” or there is law providing “ meaningful
standards for defining the limits of [the NRC’s] discretion ” in declining to take

enforcement action. Heckler v. Chaney , 470 U.S. 821, 833 n.4, 834 (1985)
(internal quotation marks omitted)

.
Public Watchd ogs 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 Gene ric 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 estimate d that the transfer would need to3

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 commo n 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

SONGS’s operator to provide updated f inancial 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

NRC’s analyses and determinations may have, those critiqu es fall far short of
demonstrating that the NRC has abdicat ed its statutory duties

. Public Watchdogs ’ contention that the NRC’s regulations and policies
provide a meaningful standard against which to judge the NRC’s exercise of

discretion also fails. Publi c Watchdog s does not point to any specific language
indicating an intent to circumscribe the NRC’s 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 NRC’s denial4

of the § 2.206 petition is unreviewable. We therefore must d ismiss the petition for

review.

PETITION D ISMISSED

.