Case 3:19-cv-00495-BAS-BLM Document 16 Filed 10/25/19 PageID.

204 Page 1 of 7

1 Michael J. Aguirre, Esq., SBN 060402

Maria C. Severson, Esq., SBN 173967
2 AGUIRRE & SEVERSON, LLP
501 West Broadway, Suite 1050
3 San Diego, CA 92101
Telephone: (619) 876-5364
4 Facsimile: (619) 876-5368
5 Attorneys for Plaintiff
6
7
8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 MICHAEL J. AGUIRRE, Case No. 19-cv-0495-BAS (BLM)
12 Plaintiff,
SUPPLEMENTAL RESPONSES
13 v. PURSUANT TO ORDER
CONVERTING MOTION TO
14 UNITED STATES NUCLEAR DISMISS INTO MOTION FOR
REGULATORY COMMISSION, and SUMMARY JUDGMENT [ECF No. 15]
15 DOES 1 to 10, inclusive,
16 Defendants.
17
Hon. Cynthia A. Bashant
18
19
20
21
22
23
24
25
26
27
28

SUPPLEMENTAL RESPONSES PURSUANT TO ORDER CONVERTING MOTION TO CASE NO. 19-CV-0495-BAS (BLM)
DISMISS INTO MOTION FOR SUMMARY JUDGMENT [ECF NO. 15]
Case 3:19-cv-00495-BAS-BLM Document 16 Filed 10/25/19 PageID.205 Page 2 of 7

1 I. INTRODUCTION
2 Defendant Nuclear Regulatory Commission (NRC) has failed in its
3 obligation to keep the public informed regarding the 3.8 million pounds of nuclear
4 waste currently being stored along an eroding coast. Defendant NRC has admitted
5 the nuclear waste owner committed multiple safety violations, which resulted in the
6 site to be temporarily shut down. However, in May 2019, Defendant NRC
7 abdicated its obligation to the public and allowed the nuclear waste owner to
8 resume downloading waste at the coastal site without providing many of the
9 communications that took between leaders of the NRC and the owners of the
10 nuclear waste site.
11 Since filing this complaint, it was revealed that several high-ranking officials
12 of both Defendant NRC and the nuclear waste owners had material communications
13 that took place following the near dropping of a nuclear waste storage canister on
14 August 3, 2019. (ECF Doc. 11-2: Request for Judicial Notice, Exs. 4, 6). Instead of
15 diligently complying with Plaintiff’s Freedom of Information Act (FOIA) request
16 regarding those types of communications, Defendant NRC failed to respond to
17 Plaintiff’s request in the required time and then summarily denied his appeal.
18 Defendant NRC’s behavior in this first case foreshadowed the evasive and
19 stonewall tactics it would continue to employ to this day.
20 However, Defendant NRC has failed to justify why it summarily denied
21 Plaintiff’s appeal and the initial requests for communications and writings in
22 connection with the alleged “Special Inspections” the NRC was conducting at the
23 site. The NRC’s enforcement decision based on the alleged inspections was
24 presented to the public in March 2019 without revealing the communications
25 between the NRC and the nuclear waste owner as Plaintiff requested. Alleged
26 inspections and follow-ups took place, yet there was no disclosure of these
27 communications. In fact, many of these communications remain in the dark, have
28 been redacted, or withheld in their entirety.
1
SUPPLEMENTAL RESPONSES PURSUANT TO ORDER CONVERTING MOTION TO CASE NO. 19-CV-0495-BAS (BLM)
DISMISS INTO MOTION FOR SUMMARY JUDGMENT [ECF NO. 15]
Case 3:19-cv-00495-BAS-BLM Document 16 Filed 10/25/19 PageID.206 Page 3 of 7

1 For example, one of the documents disclosed by the NRC referred to a

2 “Skype meeting” between the NRC and the nuclear waste owner. (Declaration of
3 Michael Aguirre, Ex. 1). Yet, when Plaintiff requested to obtain information on the
4 Skype meetings, the NRC’s FOIA analysts informed Plaintiff that “Region IV, the
5 office most likely to have responsive records to your request as described above,
6 has informed us that they held no Skype meetings with Southern California
7 Edison.”1 This statement directly contradicts the e-mail communication between
8 NRC officials and nuclear waste owner staff stating there would be a Skype
9 meeting on 7 January 2019. (Aguirre Decl., Ex. 1)
10 The FOIA was designed to ensure the federal government and agencies such
11 as Defendant NRC operate openly and transparently. Accordingly, Plaintiff
12 respectfully requests this Court order Defendant NRC produce the documents and
13 records of communications between the NRC and the nuclear waste owner related
14 to the NRC’s special inspections at the nuclear waste site.
15 II. ARGUMENT
16 A. De Novo Standard of Review for Motions for Summary
Judgment under the Freedom of Information Act
17

18 The standard of review created under the FOIA to determine whether a

19 federal agency is improperly withholding public documents was created to fulfill
20 the FOIA’s policy of full agency disclosure. Animal Legal Def. Fund v. United
21 States FDA, 836 F.3d 987, 989 (9th Cir. 2016). A district court reviews a
22 government agency’s decision to withhold documents requested under FOIA de
23 novo, and the burden is on the agency to justify its actions of nondisclosure. See 5
24 U.S.C. § 552(a)(4)(B). Here, Defendant NRC fails to provide any justification for
25 its actions of nondisclosure and delay of the production of documents.
26 It is commonly stated that the policy and purpose behind the FOIA is full
27 agency disclosure. Id. at 990; see also Dep’t of the Air Force v. Rose, 425 U.S. 352,
28 1
See Declaration of Michael Aguirre filed concurrently herewith, Exhibit 2.
2
SUPPLEMENTAL RESPONSES PURSUANT TO ORDER CONVERTING MOTION TO CASE NO. 19-CV-0495-BAS (BLM)
DISMISS INTO MOTION FOR SUMMARY JUDGMENT [ECF NO. 15]
Case 3:19-cv-00495-BAS-BLM Document 16 Filed 10/25/19 PageID.207 Page 4 of 7

1 361 (1976). Both the Ninth and Second Circuit recognized the United States
2 Legislature explicitly “provided de novo review by federal courts so that citizens
3 and the press could obtain agency information wrongfully withheld. De novo
4 review was deemed essential to prevent courts reviewing agency action from
5 issuing a meaning judicial imprimatur on agency discretion.” Animal Legal Def.
6 Fund, 836 F.3d at 990 (quoting Halpern v. FBI, 181 F.3d 279, 287 (2d Cir. 1999).)
7 In Animal Legal Def. Fund, the Ninth Circuit—on en banc review—
8 recognized there are “some FOIA cases that require resolution of dispute facts.” Id.
9 at 989 (citing GC Micro Corp. v. Def. Logistics Agency, 33 F.3d 1109, 1110 (9th
10 Cir. 1994).) Accordingly, when determining a motion for summary judgment under
11 the FOIA, the court must view the evidence in the light most favorable to the
12 nonmoving party and determine whether there are any genuine issues of material
13 fact. Animal Legal Def. Fund v. United States FDA, 836 F.3d 987, 989 (9th Cir.
14 2016). Upon appellate review, the district court’s grant or denial of motions for
15 summary judgment under the FOIA is also reviewed de novo. Id. at 988.
16 Here, Plaintiff argues there are genuine issues of material fact that warrant a
17 bench trial to determine whether Defendant NRC improperly withheld pertinent
18 records related to the enforcement decisions at the San Diego nuclear site. The
19 Ninth Circuit recognized “if there are genuine issues of material fact in a FOIA
20 case, the district court should proceed to a bench trial or adversary hearing.
21 Resolution of factual disputes should be through the usual crucible of bench trial or
22 hearing, with evidence subject to scrutiny and witnesses subject to cross-
23 examination” Id. at 990. Plaintiff contends this is exactly the type of hearing
24 necessary to determine the full extent of the cozy relationship that exists between a
25 large private-owned utility and Defendant NRC an allegedly independent federal
26 regulator.
27 ///
28 ///
3
SUPPLEMENTAL RESPONSES PURSUANT TO ORDER CONVERTING MOTION TO CASE NO. 19-CV-0495-BAS (BLM)
DISMISS INTO MOTION FOR SUMMARY JUDGMENT [ECF NO. 15]
Case 3:19-cv-00495-BAS-BLM Document 16 Filed 10/25/19 PageID.208 Page 5 of 7

1
B. Defendant NRC Continues to Delay Production, and in Some
2 Cases, Entirely Withhold Public Records
3 Defendant NRC submits to this Court that the “NRC did withhold other
4 information pursuant to FOIA’s exemptions in responding to [Plaintiff’s] FOIA
5 request.” (ECF Doc. 21-1: Declaration of Tina Ennis, ¶3) However, the NRC fails
6 to provide any reasoning or evidence supporting its decision to withhold the
7 numerous documents redacted and, in some case, withheld in their entirety. (ECF
8 Doc. 19: Joint Status Report, at 1-2)
9 Rather than complying with Plaintiff’s FOIA request, the NRC continues to
10 delay the production of documents needed to ensure the relationship between the
11 NRC and the nuclear waste owners is transparent and operating above ground under
12 the public’s scrutiny. For example, the NRC disclosed an e-mail communication
13 between officials of the nuclear waste owner and the NRC showing a “Skype
14 Meeting” was held with the subject matter “Special Inspection follow up
15 discussion.” (Aguirre Decl., Ex. 1) Plaintiff submitted a new FOIA request on 19
16 September 2019 asking for “videos of all Skype meeting between any employee,
17 officer, or agent of Southern California Edison and any employee, officer, or agent
18 of the Nuclear Regulatory Commission (NRC) regarding the San Onofre nuclear
19 waste site between August 2018 to present.” (Aguirre Decl., ¶3) On 1 October
20 2019, Defendant NRC sent Plaintiff a “Final Response” for this new request
21 stating: “Region IV, the office most likely to have responsive records to your
22 request as described above, has informed us that they held no Skype meetings with
23 Southern California Edison.” (Aguirre Decl., Ex. 2) (emphasis added).
24 This statement completely contradicts the e-mail communication between
25 NRC Region IV staff (Linda Howell, Troy Pruett, etc.) and SCE official Mark
26 Morgan stating there would be a Skype meeting on 7 January 2019. (Aguirre Decl.,
27 Ex. 1) Plaintiff responded to Defendant NRC’s final response and attached the e-
28 mail showing there was at least one e-mail communication related to a Skype
4
SUPPLEMENTAL RESPONSES PURSUANT TO ORDER CONVERTING MOTION TO CASE NO. 19-CV-0495-BAS (BLM)
DISMISS INTO MOTION FOR SUMMARY JUDGMENT [ECF NO. 15]
Case 3:19-cv-00495-BAS-BLM Document 16 Filed 10/25/19 PageID.209 Page 6 of 7

1 meeting. (Aguirre Decl., ¶ 5) Defendant NRC then stated: “You requested videos of
2 all skype meetings, and we have no video skype meetings recorded and saved.
3 Perhaps, I should have been more clear on the comment page that NRC did not hold
4 any skype meetings with SCE where there was recorded video.” (Aguirre Decl., ¶6)
5 Plaintiff explained to Defendant NRC that “[e]ven if there were not videos of
6 the Skype meetings, when using Skype, the account will keep records, such as,
7 when the call was made, duration of the call, who joined the call, etc. As part of this
8 request, please provide all records of communication for any Skype meeting held
9 between the NRC and SCE regarding the San Onofre nuclear waste site.” (Aguirre
10 Decl., ¶7)
11 In response, Defendant NRC stated: “Per the scheduler in which you have
12 provided in your email, the Skype meeting was arranged by SCE, not NRC. We
13 have consulted with our subject matter expert for Skype, and was informed that any
14 records captured as part of the Skype meeting would be in the possession of SCE.
15 Therefore, in light of your email below, we will not treat this as a new request.”
16 (Aguirre Decl., ¶8)
17 Plaintiff submits this supplement information to show why the Court’s
18 jurisdiction is necessary to obtain the withheld communications between the NRC
19 and the nuclear waste owner regarding the NRC’s special inspections at the site.
20 Defendant NRC’s inconsistent statements is yet another piece of evidence showing
21 any required exhaustion of administrative remedies would be futile. This Court
22 cannot allow Defendant NRC to drag out production requests or prevent production
23 altogether. The e-mail communication clearly shows NRC Region IV staff had
24 skype meetings with officials from SCE, yet the NRC first asserted Region IV
25 “held no Skype meetings with Southern California Edison.” When Plaintiff showed
26 Defendant NRC the e-mail, Defendant changed its position that the NRC did have
27 Skype meetings with SCE, but still could not produce any records because “any
28 records captured as part of the Skype meeting would be in the possession of SCE.”
5
SUPPLEMENTAL RESPONSES PURSUANT TO ORDER CONVERTING MOTION TO CASE NO. 19-CV-0495-BAS (BLM)
DISMISS INTO MOTION FOR SUMMARY JUDGMENT [ECF NO. 15]
Case 3:19-cv-00495-BAS-BLM Document 16 Filed 10/25/19 PageID.210 Page 7 of 7

1 This is the type of delay tactics and evasive behavior and “unwilling hands”
2 the Legislature warned against when enacting the FOIA. See EPA v. Mink, 410 U.S.
3 73, 80 (1973). In sum, Defendant NRC’s inconsistent statements and continued
4 evasive tactics should not be procedurally rewarded by removing this case.
5 III. CONCLUSION
6 Plaintiff respectfully request this Court require NRC to produce all records of
7 communication between any agent, officer or employee of the NRC and any agent,
8 office or employee of the nuclear waste owner as well as all writings the NRC
9 prepared in connection with its “Special Inspections” at the nuclear waste site.
10 Plaintiff also respectfully request this Court to hold Defendant NRC to satisfy the
11 heavy burden of proof created under the FOIA through a hearing with evidence
12 subject to scrutiny and witnesses subject to cross-examination.
13
14
15 AGUIRRE & SEVERSON LLP
16
17 Dated: October 25, 2019 /s/ Maria C. Severson
Maria C. Severson, Esq.
18 Attorneys for Plaintiffs
19
20
21
22
23
24
25
26
27
28
6
SUPPLEMENTAL RESPONSES PURSUANT TO ORDER CONVERTING MOTION TO CASE NO. 19-CV-0495-BAS (BLM)
DISMISS INTO MOTION FOR SUMMARY JUDGMENT [ECF NO. 15]