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Judge Says Lawsuit About San Onofre Nuclear Waste Storage Plans Can Move Forward

The 3.6 million pounds of radioactive waste are expected to stored in dry casks above San Onofre State Beach.

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    In what is a rare occurrence in San Diego’s Superior Court, Judge Judith Hayes has changed her mind about tossing a lawsuit aimed at changing plans to bury nuclear waste near San Onofre State Beach.

    Citizens Oversight, the group behind the lawsuit, is arguing the California Coastal Commission was wrong in approving a permit to store the spent fuel from the San Onofre Nuclear Generating Station on the northern edge of the plants property, adjacent to the Pacific Ocean.

    The San Onofre plant was permanently retired by its owners, Southern California Edison, SCE, and San Diego Gas and Electric in 2013. The plant’s operations left 3.6 million pounds of radioactive waste behind.

    The companies asked that the lawsuit to be thrown out because the attorney representing Citizen’s Oversight, Michael Aguirre, missed a filing deadline.

    In August, Judge Hayes tentatively decided to support the position of the Coastal Commission, SCE and SDG&E. This week she changed her mind, allowing for the lawsuit to continue through the court system.

    In her order denying the motion to dismiss, Judge Hayes said the protectionist policies of the Coastal Act are more relevant than an “expedient resolution” of what to do with the waste. “The stakes for the environment are so high,” she said.

    Click here to read the order. 

    Aguirre said it is not appropriate for a New Jersey contractor to be in charge of the waste. “SCE created the waste, SCE profited from the waste and SCE has the obligation to find a safer location to store of the waste,” he said. “The judge’s ruling makes it possible to argue the case on its merits.”

    In an email, Maureen Brown, a spokeswoman for SCE, said, “The judge’s recent decision involved a procedural issue and was not a judgment on the merits of the case...SCE declines to comment further on a pending lawsuit.”

    The lawsuit is scheduled to be discussed in court again on March 30, 2017.

    In a previous story, critics of the nuclear waste storage plans shared concerns about the storage location with NBC 7 Investigates.

    While the threat of a nuclear meltdown is no longer a concern because the plant is shut down, a shuttered nuclear plant does present another potential threat to public safety, according to an editorial in the April 2016 edition of Scientific American Magazine. The article warns of a greater danger, and says “more threatening than a meltdown, it's the steady accumulation of radioactive waste.”

    Daniel Hirsch, the Director of the Program on Environmental and Nuclear Policy at UC Santa Cruz, described the material as “the most dangerous stuff on earth; a witches brew of radioactive material.”

    Click here to see the complete investigation. 

    SCE does not agree. Neither does the Nuclear Regulatory Commission, NRC, and the California Coastal Commission, which both approved the Pacific coastline location.

    It’s not a case of no risk, the utilities argue, but low risk.

    Nina Babiarz, a transportation consultant and former journalist, said the location for the nuclear waste storage is a poor one.

    "It's on an earthquake fault in a tsunami zone," she said.

    NBC 7 Investigates reviewed weather reports and found rising sea levels at and around the nuclear waste storage location could continue.

    A Pacific Institute report on sea level rise, with contributions by the Scripps Institution of Oceanography, found "flooding and erosion" risks will increase. According to the report, "in areas where the coast erodes easily, sea level rise will likely accelerate shoreline recession" and "may expose previously protected areas to flooding."

    NBC 7 Investigates is working for you. If you have more information about this or other story tips, contact us: (619) 578-0393, NBC7Investigates@nbcuni.com. To receive the latest NBC 7 Investigates stories subscribe to our newsletter.