NOT FOR PUBLICATION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
 2 

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 

Generating 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 responsibilities” 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 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 
 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 

SONGS’s 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 

NRC’s 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 NRC’s regulations and policies 

provide a meaningful standard against which to judge the NRC’s exercise of 

discretion also fails. Public Watchdogs 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 denial 
 4 

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

review. 

PETITION DISMISSED.