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Case 3:19-cv-00495-BAS-BLM Document 1 Filed 03/14/19 PageID.

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1 Maria C. Severson, Esq., SBN 173967


Michael J. Aguirre, Esq., SBN 060402
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

8 UNITED STATES DISTRICT COURT


9 SOUTHERN DISTRICT OF CALIFORNIA
10

11 MICHAEL J. AGUIRRE, Case No. '19CV0495 BAS BLM


12 Plaintiff, COMPLAINT FOR
DECLARATORY JUDGMENT;
13 v. PRODUCTION OF FREEDOM OF
INFORMATION (FOIA) RECORDS
14 UNITED STATES NUCLEAR
REGULATORY COMMISSION, and
15 DOES 1 to 10, inclusive,
16 Defendants.
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1 TABLE OF CONTENTS
2 INTRODUCTION ................................................................................................. 1
3 JURISDICTION AND VENUE ............................................................................ 2
4 PARTIES ........................................................................................................... 3
5 FACTS ........................................................................................................... 3
6 A. The Irradiated Fuel Management Plan (IFMP) ...................................... 4
7 B. Post-Shutdown Decommissioning Activities Report (PSDAR) ............ 5
8 C. Decommissioning Cost-Analysis Waste Disposal ................................. 8
9 D. NRC Observes On-Going Safety Violations
at the San Diego Nuclear Waste Site ..................................................... 9
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STANDARD OF JUDICIAL REVIEW IN FOIA CASES................................. 13
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A. Plaintiff’s Freedom of Information Act (FOIA) Requests ................... 14
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B. Public Interest in Disclosure of Documents
13 Requested Under FOIA ........................................................................ 16
14 C. Exhaustion of Administrative Remedy is Futile .................................. 16
15 FIRST CAUSE OF ACTION
DECLARATORY JUDGMENT ......................................................................... 16
16
SECOND CAUSE OF ACTION
17 VIOLATION OF FOIA ....................................................................................... 17
18 PRAYER FOR RELIEF ...................................................................................... 17
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COMPLAINT
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1 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF


2 INTRODUCTION
3 Plaintiff MICHAEL J. AGUIRRE, for his complaint against defendant
4 UNITED STATES NUCLEAR REGULATORY COMMISSION (NRC), alleges as
5 follows:
6 1. This is an action under the Freedom of Information Act (FOIA), 5
7 U.S.C. § 552, to compel production under a pair of FOIA requests.
8 2. This Court has jurisdiction over this action pursuant to 5 U.S.C. §
9 552(a)(4)(B).
10 3. The NRC is a federal agency charged with the duty to continuously
11 inspect nuclear power plants and enforce safety regulations to ensure people and the
12 environment are adequately protected from uses of radioactive material. As a
13 federal agency, the NRC is also charged with the duty to comply with the record
14 production laws under FOIA.
15 4. One nuclear site the NRC is charged with overseeing is a site that
16 stores nuclear waste in a beach in San Diego, CA. During the site’s process for
17 storing nuclear waste, the NRC observed a pattern of ongoing safety violations,
18 including the recent misalignment of a canister storing approximately 100,000
19 pounds of nuclear waste on 3 August 2018.
20 5. Since this incident, NRC officials have not appeared before the public
21 in San Diego in an NRC proceeding. The only proceeding the NRC conducted was
22 in Arlington, Texas. The NRC has not held any evidentiary hearing on this matter.
23 It has not placed any witness or decision maker under oath. The NRC delayed
24 disclosure of violations of NRC safety rules related to the ways and means in which
25 the nuclear waste at the San Diego beach site was managed. And now, the NRC
26 wishes to do the same to Plaintiff’s two FOIA requests demanding information
27 directly related to the NRC’s inspections and observations made during the storing
28 of nuclear waste at the San Diego site.
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1 6. On 21 December 2018, Plaintiff first requested production of writings


2 prepared in connection with the NRC Special Inspection Report 050-
3 00206/2018005; 050-00361/2018005; 050-000362/2018005; and 072-00041/2018-
4 001 (Request No. 1). Specifically, Plaintiff requested the writings prepared from the
5 NRC team interview of the licensee and contractor staff “involved or present during
6 the August 3, 2018, misalignment incident.” The NRC assigned an identifier for
7 this request as NRC-2019-000154.
8 7. On 22 December 2018, Plaintiff made a second request for production
9 of writings that showed reports to the NRC as to the discovery of broken shim
10 pin(s) in an empty canister before it was loaded at the nuclear waste site in San
11 Diego in February 2018 (Request No. 2). The NRC assigned an identifier for this
12 request as NRC-2019-000155.
13 8. To date, the NRC has engaged in stonewall tactics and has denied
14 Plaintiff’s request for records without any reasonable justification. The NRC’s
15 actions are inapposite to FOIA’s policy of broad disclosure of government
16 documents and maximum feasible public access to government information.
17 Church of Scientology v. United States Dep’t of the Army, 611 F.2d 738 741–42
18 (9th Cir. 1979)
19 9. The United States Supreme Court has recognized FOIA is designed to
20 “pierce the veil of administrative secrecy and to open agency action to the light of
21 public scrutiny.” Dep’t of the Air Force v. Rose, 425 U.S. 352, 361 (1976). Plaintiff
22 requested the records to ensure the storing of nuclear waste in San Diego is open
23 and transparent and the public is kept abreast of the current safety violations.
24 Plaintiff has a right of access to the requested information under 5 U.S.C. §
25 552(a)(3), and the documents Plaintiff requested should be immediately released.
26 JURISDICTION AND VENUE
27 10. This Court has jurisdiction pursuant to 28 U.S.C. § 1331 because this
28 action arises under the laws of the United States, in particular, 5 U.S.C. § 552. This
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1 Court also enjoys jurisdiction pursuant to 5 U.S.C. § 552(a)(4)(B), under which,


2 “the district court of the United States in the district in which the complainant
3 resides, or has his principal place of business… has jurisdiction to enjoin the
4 agency from withholding agency records and to order the production of any agency
5 records improperly withheld from the complainant” because, among other things,
6 Plaintiff lives in this District.
7 11. Venue is proper in this District pursuant to 5 U.S.C. § 552(a)(4)(B)
8 and 28 U.S.C. § 1931 because, among other things, Plaintiff’s principal place of
9 business is in this District.
10 PARTIES
11 12. Plaintiff MICHAEL AGUIRRE is a resident of this District and is an
12 attorney at the law firm AGUIRRE & SEVERSON, which is his principal place of
13 business at 501 West Broadway, Suite 1050, San Diego, California 92101. Plaintiff
14 brings this action in his personal capacity as a certified fraud examiner and former
15 elected official with a strong personal interest in open government that operates
16 transparently as to its conduct and records.
17 13. Defendant United States Nuclear Regulatory Commission (NRC) has
18 the records Plaintiff requested.
19 FACTS
20 14. From its regional office in Arlington, Texas, the NRC regulates the
21 ways and means of three million, eight-hundred thousand (3,800,000) pounds of
22 nuclear waste that is stored on the beach in San Diego.
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1 15. In September 2014, the NRC received several pertinent documents


2 related to the operations of the San Diego nuclear waste site including, an Irradiated
3 Fuel Management Plan (IFMP); Site Specific Decommissioning Cost Estimate
4 (DCE); and Post-Shutdown Decommissioning Activities Report (PSDAR).
5 A. The Irradiated Fuel Management Plan (IFMP)
6 16. The IFMP assumed title and possession of the spent fuel at the San
7 Diego nuclear waste site will be transferred to the United States Secretary of
8 Energy for its ultimate disposal in a repository. The IFMP provided for the “initial
9 interim storage” to be “wet storage” in spent fuel pools at the San Diego nuclear
10 site. The spent fuel pools were to be isolated from their normal support systems and
11 those systems replaced by stand-alone cooling and filtration units (also termed a
12 “spent fuel pool island”). Next, under the IFMP, the irradiated fuel in the spent fuel
13 pools was to be transferred to interim “dry storage” at the Common Independent
14 Spent Fuel Storage Installation (ISFSI) also located at the nuclear site in San Diego.
15 17. The IFMP noted there were a total of 3,460 irradiated fuel assemblies
16 at the San Diego nuclear waste site. Seven-hundred ninety-two (792) fuel
17 assemblies had already been transferred to dry storage, and the remaining 2,668
18 irradiated fuel assembles were to be loaded into Dry Shielded Canisters (DSCs) and
19 transferred to the ISFSI. The IFMP noted there were 18 DSCs storing Unit 1
20 nuclear waste and 33 DSCs storing other spent fuel. The IFMP stated the
21 movement of the irradiated fuel to dry storage would begin in 2017 and would
22 finish in 2019.
23 18. The IFMP also indicated it would procure additional DSCs beginning
24 in 2014, including an additional 47 DSCs for Unit 2 at the San Diego nuclear site,
25 and 44 DCSs for Unit 3 of the site. The spent fuel pool inventory was forecasted to
26 be transferred to dry storage no later than the end of 2019. The IFMP assumed a
27 2024 start for the transfer of spent fuel from the site in San Diego to the Department
28 of Energy. The utility operating the San Diego nuclear site assumed all spent fuel
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1 would be removed from the San Diego site as of 2049. Based on this assumption,
2 the utility assumed the spent fuel storage facility in San Diego would be
3 decommissioned by 2051.
4 19. The IFMP provided the cost for 12 additional DSCs to be stored at the
5 San Diego nuclear site. It also provided for ongoing storage of Unit 1 spent fuel at
6 the GE-Hitachi Nuclear America LLC’s Morris Operation in Morris, Illinois. The
7 utility also represented, in the IFMP, it was committed to providing consistent and
8 up-to-date information to all of its stakeholders and regulators.
9 20. In the IFMP, the utility operating the San Diego nuclear waste site
10 admitted to the NRC the utility had collected funds from ratepayers in the nuclear
11 decommission trusts for funding Spent Fuel Management.
12 B. Post-Shutdown Decommissioning Activities Report (PSDAR)
13 21. The NRC also received the PSDAR in September 2014. In the
14 PSDAR, the utility acknowledged it has the responsibility to restore the San Diego
15 site in accordance with applicable regulations and agreements. The utility also
16 recounted, Unit 1 of the San Diego nuclear site was shut down in 1992 with on-
17 shore facilities largely dismantled by 2009.
18 22. The utility admitted it had a responsibility to its stakeholders and the
19 communities they serve to decommission the San Diego nuclear site in a
20 transparent and effective manner while striving to attain high standards of safety
21 and environmental protection.
22 23. The utility acknowledged the importance of community engagement
23 during the decommissioning process. The utility stressed its commitment to
24 engaging the local community and its leaders in an open, transparent, and proactive
25 manner. The utility represented it was actively engaged with external stakeholders
26 to: understand their priorities; inform them of the utility’s plans for the San Diego
27 nuclear site, and to seek the community’s input on the safe, timely, and cost-
28 effective decommissioning of the nuclear site. The utility claimed in the PSDAR it
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1 was actively engaging with the community through public outreach including
2 briefings for community groups and routine educational updates for local, state, and
3 federal officials.
4 24. The utility reported it had formed the Community Engagement Panel
5 (CEP) and claimed it had members representing a broad range of stakeholder to
6 advise the utility on decommissioning matters. The utility represented CEP
7 members were provided with the opportunity to review and provide input on the
8 PSDAR, the Decommissioning Cost Estimate (DCE) and the IFMP. The utility
9 represented it hosted two workshops with external technical experts to provide the
10 CEP members with a depth of knowledge in these areas to assist CEP members’
11 review of the PSDAR, DCE, and IFMP. The utility also stated it received feedback
12 from the CEP prior to finalization of those documents.
13 25. In the PSDAR, the utility noted the nuclear site was located on the
14 coast of southern California in San Diego County, approximately 62 miles
15 southeast of Los Angeles and 51 miles northwest of San Diego. The San Diego
16 nuclear site is located entirely within the boundaries of the United States Marine
17 Corps Base Camp Pendleton. The site is approximately 4,500 feet long and 800 feet
18 wide, comprising 84 acres. The site area is known as “the Mesa” for other adjacent
19 parcels. The property on which the station is built is subject to an easement from
20 the U. S. Government through the U. S. Navy. The nearest privately-owned land is
21 approximately 2.5 miles from the site.
22 26. The PSDAR provides the storage at the San Diego nuclear site was
23 initiated in 2003 and was subsequently expanded in 2007 to support the currently
24 placed 63 Horizontal Storage Modules in which 51 Dry Storage Containers (DSCs)
25 have been installed to-date: 50 containing irradiated fuel and one (1) containing
26 Greater-Than-Class-C (GTCC) materials.1 The most recent loading campaign was
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According to the NRC’s website, the NRC has developed a classification system which
28 categorizes waste as Class A, B, C, or Greater-Than-Class C (GTCC). GTCC has concentrations
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1 conducted in 2012. The PSDAR noted the NRC has evaluated the environmental
2 impacts of three general methods for decommissioning power reactor facilities in
3 NUREG-0586, “Final Generic Environmental Impact Statement (GELS) on
4 Decommissioning Nuclear Facilities,” Supplement 1. The three general methods
5 are:
6 DECON: The equipment, structures, and portions of the facility and
site that contain radioactive contaminants are promptly removed or
7 decontaminated to a level that permits termination of the license after
cessation of operations.
8
SAFSTOR: The facility is placed in a safe stable condition and
9 maintained in that state (safe storage) until it is subsequently
decontaminated and dismantled to levels that permit license
10 termination. During SAFSTOR, a facility is left intact or may be
partially dismantled, but the fuel has been removed from the reactor
11 vessel and radioactive liquids have been drained from systems and
components and then processed. Radioactive decay occurs during the
12 SAFSTOR period, thus reducing the levels of radioactivity in and on
the material and potentially the quantity of radioactive material that
13 must be disposed of during the decontamination and dismantlement.
14 ENTOMB: Radioactive structures, systems, and components are
encased in a structurally long-lived substance such as concrete. The
15 entombed structure is appropriately maintained, and continued
surveillance is carried out until the radioactivity decays to a level that
16 permits termination of the license.
17 27. The utility operating the San Diego nuclear site reported it chose the
18 DECON method. According to the PSDAR, the utility claimed it is currently in the
19 planning period during which the site is preparing for safe and orderly transition to
20 dismantlement. The utility reported additional ISFSI capacity would be added to
21 meet all of the site’s needs and plans to isolate the Spent Fuel Pools (referred to as
22 “islanding”) were in development. The utility also reported the San Diego nuclear
23 site would be decontaminated and dismantled (D&D) to levels that permit
24 termination of the NRC licenses and in accordance with the requirements agreed to
25 by the U.S. Navy in the easement for the site. The utility stated it was developing a
26 Termination Plan to be submitted for NRC approval at least two years prior to
27
of radionuclides that exceed the limits established by the Commission for Class C LLRW. See
28 https://www.nrc.gov/waste/llw-disposal/llw-pa/gtcc-transuranic-waste-disposal.html.
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1 termination of the license.


2 28. In the PSDAR, the utility claimed it had benchmarked the experiences
3 of commercial decommissioning projects in the 1990s and 2000s and has sought the
4 input from experienced individuals and groups with a wide range of such
5 experience. The utility represented it maintains close communications with those
6 facilities currently undergoing decommissioning and with many of the
7 organizations supporting those efforts.
8 29. The utility specifically cited the Zion and Humboldt Bay plants as
9 undergoing active decommissioning. The utility stated three other plants
10 (Kewaunee, Crystal River 3, and Vermont Yankee) were or would soon be entering
11 SAFSTOR conditions of varying durations prior to dismantlement. In the PSDAR,
12 the utility also stated there were mature solutions for many of the technical
13 challenges confronting the San Diego nuclear site’s decommissioning.
14 30. The NRC received this information as early as September 2014, and
15 the NRC is the organization in charge of ensuring the utility decommissioned the
16 San Diego nuclear site in accordance with the relevant regulations and agreements.
17 C. Decommissioning Cost-Analysis Waste Disposal
18 31. The NRC also received a Decommissioning Cost Analysis (DCA) for
19 the San Diego nuclear waste site reporting waste management costs were a
20 significant portion of the decommissioning cost estimate. According to the utility,
21 the following did or would take place. It hired a third-party contractor, Energy
22 Solutions, to estimate the spent fuel waste disposal costs for the San Diego site. The
23 utility claimed regulations governing disposal of radioactive waste are stringent to
24 ensure control of the waste and preclude adverse impact on public health and
25 safety. The utility put the largest spent fuel staffs in place while the fuel pool is
26 operational during the spent fuel cooling period and the fuel assemblies are being
27 transferred to dry storage. After all spent fuel has been removed from the spent fuel
28 pool, the utility will reduce the amount of staff at the site. During spent fuel pool
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1 operations and the dry storage period, the full-time spent fuel management staff will
2 be supplemented with part-time staff to support fuel movements.
3 32. According to the utility operating the San Diego nuclear waste site, the
4 spent fuel shipping schedules are based in part on the Department of Energy’s
5 “Acceptance Priority Ranking & Annual Capacity Report,” dated July 2004. The
6 information regarding existing fuel inventory, planned transfers to dry storage and
7 the Department of Energy’s projected date of 2024 for acceptance of spent fuel
8 from the San Diego nuclear waste site is based on information provided by the
9 utility. The utility also stated a spent fuel shipping schedule is provided as part of
10 its decommissioning cost estimate (see table below). The utility estimated the total
11 decommissioning cost would be $1,276,196,000.
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21 D. NRC Observes On-Going Safety Violations at the San Diego Nuclear
Waste Site
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23 33. From 22 January 2018 to 31 January 2018, NRC inspectors observed


24 the utility’s first nuclear waste Canister Loading Operation on the beach in San
25 Diego. The first nuclear waste canister loaded did not have an NRC-approved shim
26 system to allow airflow to the fuel assemblies within the canister, a violation of
27 NRC safety rules, including 10 CFR 72.146(a). In fact, the first four nuclear waste
28 canisters did not have shims with cutouts needed for thermal heat transfer helium
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1 flow.
2 34. During downloading of the nuclear canisters from January to August
3 2018, the bottoms of canisters were frequently getting caught on the shield ring
4 located inside the storage vaults. As of August 2018, 29 canisters, each containing
5 37 nuclear fuel assemblies and each weighing 100,000 pounds, were downloaded.
6 35. On 3 August 2018, a nuclear waste canister during downloading came
7 to rest on a shield ring inside the storage vault, as shown here:
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21 36. The slings used to lower the canister were completely bunched up on
22 the ground—supporting no part of the canister load. If that multi-purpose canister
23 (MPC) had slipped, or the canister had slipped somehow because of vibration, or
24 some other mechanism during that time, those slings, in the completely slack and
25 bunched-up position, were in no condition to capture and arrest that drop. That
26 MPC, containing 100,000 pounds of spent fuel, would have dropped to the bottom
27 of that canister with no slings being enabled.
28 ///
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1 37. On 22 July 2018, there was an abnormal delay in a canister


2 downloading operation. What should have taken 15 minutes to download a
3 canister, ended up taking an hour and a half (90 minutes) because the nuclear waste
4 canister was not properly aligned for downloading for over an hour and a half. This
5 event was not recorded as part of the required corrective action program. There was
6 no communication, no operational experience passed on to make sure workers
7 learned from what happened on 22 July 2018.
8 38. During downloading operations (January 2018 to August 2018) the
9 nuclear waste station frequently experienced the bottoms of canisters getting caught
10 on the shield ring. Those responsible and in charge never identified the
11 misalignments as conditions adverse to quality, consequently, those responsible and
12 in charge never implemented actions that would have prevented the August 3rd
13 event.
14 39. Additionally, during downloading operations (January 2018 to August
15 2018) there were numerous deficiencies in training and supervision of the
16 downloading of nuclear waste at the San Diego beach site. There were also
17 numerous instances of failures to make required notifications of safety rule
18 violations.
19 40. Management of the nuclear waste at the San Diego beach site was
20 outsourced to Holtec International (Holtec), a corporation organized under the laws
21 of the state of Delaware, with its principal place of business at 555 Lincoln Drive
22 West, Marllon, New Jersey—2,804 miles from the San Diego beach nuclear waste
23 site, as shown here:
24 ///
25 ///
26 ///
27 ///
28 ///
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8 41. Holtec, in turn, delegated management of the nuclear waste at the San
9 Diego beach site to Williams Industrial Services Group (Williams) and Sonic
10 Systems International (Sonic). Williams surrendered its right to do intrastate
11 business in California on 1 December 2005. Sonic is a privately-owned
12 corporation.
13 42. Williams’ principal place of business is Chamblee, Georgia—2,203
14 miles from the San Diego nuclear waste beach site, as shown here:
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19 43. Sonic’s principal place of business is Houston, Texas—1,516 miles


20 from the San Diego nuclear waste beach site as shown here:
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27 44. NRC conducted several Special Inspection Reports at the San Diego
28 nuclear waste site, including the 3 August 2019, the day of the misalignment
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1 incident. However, NRC officials have not appeared before the public in San Diego
2 in an NRC proceeding. The only proceeding the NRC conducted was at Arlington,
3 Texas. The NRC has not held any evidentiary hearing on this matter. It has not
4 placed any witness or decision maker under oath. The NRC officials have delayed
5 disclosure of violations of NRC safety rules related to the ways and means in which
6 the nuclear waste at the San Diego beach site was managed.
7 STANDARD OF JUDICIAL REVIEW IN FOIA CASES
8 45. FOIA provides a statutory basis for citizens to request documents from
9 the federal governments and its various departments, agencies and/or officers. See
10 generally 5 U.S.C. § 552 et seq. The overriding purpose of FOIA is to “mandate
11 policy of broad disclosure of government documents” and maximum feasible public
12 access to government information. Powell v. U.S. Dept. of Justice, 569 F. Supp.
13 1192, 1197 (N.D. Cal. 1983) (citing Church of Scientology v. United States Dep’t of
14 the Army, 611 F.2d 738 741–42 (9th Cir. 1979)).
15 46. The U.S. Supreme Court has long recognized that Congress’ intent in
16 enacting FOIA was to implement “a general philosophy of full agency disclosure.”
17 United States Dep’t of Justice v. Reports Comm. for Freedom of the Press, 489 U.S.
18 749, 754 (1989). The Supreme Court has explained that, without question, the Act
19 is broadly conceived. It seeks to permit access to official information long-shielded
20 unnecessarily from public view and attempts to create a judicially enforceable
21 public right to secure such information from possibly unwilling official hands. EPA
22 v. Mink, 410 U.S. 73, 80 (1973).
23 47. The Supreme Court has also stated that FOIA is designed to “pierce
24 the veil of administrative secrecy and to open agency action to the light of public
25 scrutiny.” Dep’t of the Air Force v. Rose, 425 U.S. 352, 361 (1976). The basic
26 purpose of FOIA “is to ensure an informed citizenry, vital to the functioning of a
27 democratic society, needed to check against corruption and to hold the governors
28 accountable to the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214,
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1 242 (1978).
2 48. A district court’s review of a government agency’s decision to
3 withhold documents requested under FOIA is de novo, and the burden is on the
4 agency to justify its actions of nondisclosure. See 5 U.S.C. § 552(a)(4)(B);
5 Kreindler v. Department of Navy, 363 F.Supp 611, 613 (D.C.N.Y. 1973). In FOIA
6 cases, the government bears the burden of establishing that any exemption from
7 disclosure applies. 5 U.S.C. § 552(a)(4)(B); Ortiz v. U.S. Dep’t of Health and
8 Human Services, 70 F.3d 729, 732 (2nd Cir. 1995), certiorari denied 517 U.S. 1136
9 (1996). Courts must construe FOIA’s statutory exemptions narrowly and in favor of
10 disclosure. John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989).
11 A. Plaintiff’s Freedom of Information Act (FOIA) Requests
12 49. On 21 December 2018, Plaintiff first requested production of writings
13 prepared in connection with the NRC Special Inspection Report 050-
14 00206/2018005; 050-00361/2018005; 050-000362/2018005; and 072-00041/2018-
15 001 (Request No. 1). Specifically, Plaintiff requested the writings prepared from the
16 NRC team interview of the licensee and contractor staff “involved or present during
17 the August 3, 2018, misalignment incident” at the San Diego nuclear waste site.
18 50. Plaintiff made an additional request on 22 December 2018, seeking
19 production of writings that showed reports to the NRC as to the discovery of broken
20 shim pin(s) in an empty canister before it was loaded at the nuclear waste site in
21 San Diego in February 2018 (Request No. 2).
22 51. Over a month later, on 29 January 2019, the NRC admitted delay in
23 responding to plaintiffs FOIA requests. On 29 January 2019, an NRC official e-
24 mailed Plaintiff stating, “My apologies for the delay in responding to your FOIA
25 Requests,” and assigned Plaintiff identifiers for these two requests: NRC-2019-
26 000154 (Request No. 1) and NRC-2019-000155 (Request No. 2):
27 NRC-2019-000154 Writings prepared in connection with NRC
Special Inspection Report 050-00206/2018005; 050-00361/2018005;
28 050-00362/2018005; and 072-00041/2018-001
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1 NRC-2019-000155 Any writings showing [] reported to the


Nuclear Regulatory Commission, …discovery of broken shim pin(s) in
2 an empty canister before it was loaded at the …Independent Spent
Fuel Storage Installation (ISFSI) in February 2018
3

4 52. Although the NRC clearly summarized Plaintiff’s requests and the
5 documents are likely readily available to the NRC, no writings have been produced.
6 Instead of providing any documents, the NRC stalled its response on the pretext
7 that it needed to “verify the $1500 fee limit specified in your request to ensure that
8 this was not an error.” Despite clearly acknowledging the $1500 fee limit in both of
9 Plaintiff’s original requests, Plaintiff again confirmed the $1500 fee.
10 53. On 30 January 2019, the NRC formally responded to Plaintiff’s
11 request and estimated the records would be disclosed by February 28, 2019 -- over
12 two months from the original date of Plaintiff’s requests.
13 54. Given the ongoing and pattern of serious safety violations at the San
14 Diego nuclear waste beach site, Plaintiff asked the NRC to expedite the records
15 request because those operating the waste site may resume downloading the
16 canisters without correcting the pattern of safety violations already identified by the
17 NRC. The NRC denied Plaintiff’s request for expedited processing on 14 February
18 2019, and consolidated his requests into a single appeal (NRC-2019-000201).
19 55. On 22 February 2019, the NRC summarily denied Plaintiff’s appeal
20 stating although the Plaintiff agreed to pay up to $1500 in both cases, Plaintiff
21 needed to also make an “advanced payment” and therefore the NRC would not
22 proceed with his request. The NRC also stated Plaintiff had not clarified which
23 specific category of records Plaintiff was seeking, and therefore there was no basis
24 to appeal and the appeal was considered moot. Yet, Plaintiff agreed to make
25 payment, and the category of records was clear. Given the recency of the
26 underlying investigation of issues at the waste site, the NRC demand was a mere
27 pretext for noncompliance with FOIA.
28 ///
15
COMPLAINT
Case 3:19-cv-00495-BAS-BLM Document 1 Filed 03/14/19 PageID.18 Page 18 of 19

1 56. To date, the NRC has failed to provide any of the records identified in
2 Plaintiffs two records requests.
3 B. Public Interest in Disclosure of Documents Requested Under FOIA
4 57. The information requested under FOIA would inform the public about
5 NRC violations of public trust involving the threat to public health and safety and
6 the general welfare of over eight million people living in and around the nuclear
7 waste stored at the San Diego beach site. There is an obvious public interest in a
8 full and thorough airing of serious abuses that did in fact occur at the San Diego
9 nuclear waste site, in the hope that such abuses will not occur in the future. The
10 information sought will expose any collusion between the NRC and the entities it is
11 supposed to regulate. The information sought will show whether the NRC has
12 conducted enough oversight to protect the public health, safety and welfare.
13 C. Exhaustion of Administrative Remedy is Futile
14 58. The NRC denied Plaintiff’s request for expedited processing and then
15 summarily denied Plaintiff’s appeal. Based on the failure to produce records,
16 summary denials, and dilatory tactics of the NRC, Plaintiff has exhausted all his
17 administrative remedies under 5 U.S.C. § 552(a)(6)(A)(ii).
18 59. Further, any other exhaustion of administrative remedies would be
19 inadequate and futile. Time is of the essence because millions of people living in
20 the counties surrounding the site will be in danger of serious safety and health
21 concerns if those operating the waste site resume downloading the canisters without
22 correcting the problems already created and identified in the NRC proceedings.
23 FIRST CAUSE OF ACTION
24 DECLARATORY JUDGMENT
25 60. The allegations made in the paragraphs above are fully alleged here by
26 reference.
27 61. FOIA instructs the federal government, including the NRC, to publicly
28 release the requested records.
16
COMPLAINT
Case 3:19-cv-00495-BAS-BLM Document 1 Filed 03/14/19 PageID.19 Page 19 of 19

1 62. The NRC has not provided the requested records to Plaintiff.
2 63. Plaintiff seeks declaratory judgment that the NRC produce Plaintiff’s
3 requested records immediately pursuant to FOIA.
4 SECOND CAUSE OF ACTION
5 VIOLATION OF FOIA
6 64. The allegations made in the paragraphs above are fully alleged here by
7 reference.
8 65. Plaintiff seeks that the NRC release the requested records.
9 66. Plaintiff has exhausted its administrative remedies and has received
10 none of the records requested.
11 67. FOIA instructs the federal government, including the NRC, to publicly
12 release the requested records.
13 68. Upon substantially prevailing, Plaintiff should be awarded his
14 attorneys’ fees under 5 U.S.C. § 552(a)(4)(E).
15 PRAYER FOR RELIEF
16 WHEREFORE, Plaintiff respectfully prays that:
17 1. The Court declare that the NRC’s failure to respond to Plaintiff’s
18 requested documents was unlawful;
19 2. The Court order the NRC to make Plaintiff’s requested records
20 released to Plaintiff;
21 3. The Court order the NRC to award attorney’s fees to Plaintiff pursuant
22 to 5 U.S.C. § 552(a)(4)(E); and
23 4. The Court grant such other and further relief as this Court may deem
24 just and proper.
25 Respectfully submitted,
26 AGUIRRE & SEVERSON, LLP
27 Dated: March 14, 2019 /s/Maria C. Severson
Maria C. Severson, Esq.,
28 Attorney for Plaintiff
17
COMPLAINT
Case 3:19-cv-00495-BAS-BLM Document 1-1 Filed 03/14/19 PagelD.20 Page 1 of 2

JS 44 (Rev. 06,17) CIVIL COVER SHEET


The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the Filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form approsed by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of-Court for the
purpose orinitiating the civil docket sheet SI / 15 SI Ri ( I IONS ON NED l I•ORM.)

I. (a) PLAINTIFFS DEFENDANTS

MICHAEL J. AGUIRRE UNITED STATES NUCLEAR REGULATORY COMMISSION, and


DOES 1 to 10, inclusive
(b) County of Residence of First Listed Plaintiff San Diego County of Residence of First Listed Defendant
(ix ft.-um/FE (AsEs on I')
NOTE: IN LAND CONDEMNATION CASES. USE THE LOCATION OF
THE TRACT OF LAND INVOLVED,

(C) Attomevs (Firm Name. Address. and 1 elephone Number,: Attorneys (Il Known)
Maria C. SeVerson, Esq., SBN 173967
AGUIRRE & SEVERSON, LLP
'19 CV0495 BAS BLM
(619) 876-5364
501 West Broadway, Suite 1050, San Diego, CA 92101

II. BASIS OF JURISDICTION (Mace an "X" m One Bo.r 00) III. CITIZENSHIP OF PRINCIPAL PARTIES (Mace on -.V" cil One Box for Plainne

(For Dirercui (ases Onlc) and One Boy lor Defendant)


O 1 U.S. Government X 3 Federal Question PTF DEF PTF DEF
Plaintiff /1!..V. (;overnment Not a Purl)) Citizen of This State 0 1 0 1 Incorporated or Pnricipal Place 0 4 0 4
of Business In This State

O 2 U.S. Government 0 4 Diversity Citizen of Another State 0 2 ci 2 Incorporated mid Principal Place 0 5 0 5
Defendant thichwie encenslup f.?/ l'arnes m hem I Ili of Business hi Another State

Citizen or Subject of a 0 3 -1 3 Foreign Nation 0 6 0 6


Foreien Countrs
Iv_ NATURE OF SUIT rm., mi —1.— m Om, Rtcr ()cilt I
Click here for Nature of Suit C ode Description.
I CONTRACT TORTS FORFE1TURE/PENALTY BANKRUPTCY OTHER STATUTES 1
O 110 Insurance PERSONAL IN.Il RY PERSONAL INJURY GI 625 Dnig Related Seizure 0 422 Appeal 28 USC 158 0 375 False Claims Act
O 120 Marine 0 310 Airplane 0 365 Personal Injury 0 423 Withdrawal
-
of Property 21 USC 881 0 376 Out Tam (31 USC
O 130 *stiller Act 0 315 ,Airplane Product Product Liability 28 USC 157LI 690 Other 3729(a))
O 140 Neuotiable Instrument Liabilits 0 367 Health Care0 400 State Reapportionment
O 150 ReCONCIA of Os erpament 1 320 Assault. Libel & Pharmaceutical PROPERTY RIGHTS 0 -$10 Antitrust
& Enforcement of.ludument Slander Personal Injury 0 820 Copyrights 0 430 Banks and Banking
O 151 Medicare Act 0 330 Federal Employers' Product Lisbiiits 1 830 Patent GI 450 Commerce
O 152 Recosery of Defaulted Liability 0 368 .Asbestos Personal 0 835 Patent Abbres iated 0 460 Deportation -

Student Loans 0 340 Marine Injury Product Ness Drug Application G1 470 Racketeer Influenced and
(Excludes Veterans) 0 345 Marine Product Liability Ci 840 Trademark Corrupt Organizations
CI 153 Recovery of Os erpayment Liability PERSONAL PROPERTY LABOR SOCIAL SECURITY 0 480 Consumer Credit
of Veteran's Benefits 0 350 Motor Vehicle 0 370 Other Fraud 0 710 Fair Labor Standards 0 861 HLA (1395ff) 0 490 Cable:Sat TV
O 160 Stockholders' Sults 0 355 Motor Vehicle CI 371 Truth in Lending ,Act 0 862 Black Lung (923) 0 850 Securities.Commodities:
O 190 Other Contract Product Liability 0 380 Other Personal 0 720 Labor Nlanagement 0 863 DIWCDIWW (405(g)) Exchange
O 195 Contract Product Liabilny 0 360 Other Personal Property' Damage Relations 0 864 SSID Title XVI 1 890 Other Statutory Actions
O 196 Franchise Injury 0 385 Property Datnage 01 740 Railway Labor Aci 0 865 RSI (405(g)) 0 891 Agricultural Acts
CI 362 Personal Injury -
Product Liability 0 751 Family and Medical 0 893 Environmental Matters
Medical Malpractice Lease Act OK 895 Freedom of Information
I REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS 0 790 Other Labor Litigation FEDERAL TAX SUITS Act
CI 210 Land Condemnation 0 440 Other Cis il Rights Habeas Corpus: CI 791 Emplo‘ ee Retirement 0 870 Taxes (U S Plaintiff 0 896 Arbitration
0 220 Foreclosure 0 441 Voting 0 463 Alien Detainee Insome Security .Act or Defendant) 01 899 Administratise Procedure
0 230 Rent Lease & Ejectment 0 442 Employment 0 510 Motions to Vacate .0 871 IRS Third Party Act Rey less or .Appeal of
CI 240 Torts to Land 0 443 Housing/ Sentence 26 L SC 7609 Agency Decision
CI 245 Tort Product Liability Accommodations 0 530 General CI 950 Constitutionality of
0 290 All Other Real Property 0 445 Amer w Disabtlities -
0 535 Death Penalt) IMMIGRATION State Statutes
Employment Other: CI 462 Naturalization .Applicanon
0 446 Amer Mt Disabilities -
0 540 Mandamus & Other 1 46s Other Immigration
Other 0 s50 Cistl Rights Actions
0 448 Education 0 s55 Pnson Condition
0 s60 Cis il Detainee -

Conditions of
Confinement

V. ORIGIN aloft' an "A- MOM? BOX OW?)

X I Original 0 2 Retnoved from 0 3 Remanded from 0 4 Reinstated or 71 5 Transferred frorn 0 6 Multidistrict 0 8 Multidistrict
Proceeding State Court Court
Appellate Reopened Another District Litigation -

Litigation -

Ispec-0) Transfer Direct File


Cite the U.S. Civil Statute under which you are tilin2 (Do not cite jurisdictional statutes unless dirersio:
5 U.S.C. Sec, 552
VI. CAUSE OF ACTION Bnef
description of cause:
Action under FOIA to compel production under a pair of FOIA Requests
VII. REQUESTED IN CI CHECK IF THIS Is A CLASS ACTION DEMAND S CHECK YES only if demanded in complaint:
COMPLAINT: UNDER RULE 23, F.R.Cy.P. JURY DEMAND: 0 Yes ONo

VIII. RELATED CASE(S)


Nee Immo:now
IF ANY JUDGE DOCKET NUMBER
DATE OF .ATTORNEY OF RECORD

03/14/2019 _.. . . . . . . . .;SIGNATURE —__

RECEIPT ANIOL NT APPLYING IFP JUDGE LAG. JUDGE


Case 3:19-cv-00495-BAS-BLM Document 1-1 Filed 03/14/19 PagelD.21 Page 2 of 2
JS 44 Re% erse (Re% 06 17)

INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44

Authority For Civil Cover Sheet

The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other
papers as
required by law, except as provided by local rules of court. This form. approved by the Judicial Conference of the United States in September 1974. is
required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently. a civil cover sheet is submitted to the Clerk of
Court for each civil complaint filed. The attorney filing a case should complete the form as follows:

L(a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use
only the full name or standard abbreviations. If the plaintiff or defendant is an official within a
government agency. identify first the agency and
then the official. giving both name and title.
(b) County of Residence. For each civil case filed, except U.S. plaintiff cases. enter the narne of the county where the first listed plaintiff resides at the
time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land
condemnation cases. the county of residence of the "defendant" is the location of the tract of land involved.)
(c) Attorneys. Enter the firm narne. address, telephone number, and attorney of record. If there are several attorneys. list them on an attachment, noting
in this section "(see attachment)".

11. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a). F.R.Cv.P.. vvhich requires that jurisdictions be shown in pleadings. Place an "X"
in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shovvn beim%
United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.
United States defendant. (2) When the plaintiff is suing the United States. its officers or agencies, place an "X" in this box.
Federal question. (3) This refers to suits under 28 U.S.C. 1331, NN here jurisdiction arises under the Constitution of the United States, an amendment
to the Constitution, an act of Congress or a treaty of the United States. In cases ‘N here the U.S. is a party. the U.S. plaintiff or defendant code takes
precedence, and box I or 2 should be marked.
Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332. vv here parties are citizens of different states. W hen Box 4 is checked, the
citizenship of the different parties rnust be checked. (See Section 111 belovv; NOTE: federal question actions take precedence over diversity
cases.)

III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship \ as indicated above. Mark this
section for each principal party..

IV. Nature of Suit. Place an "X" in the appropriate box. If there are multiple nature of suit codes associated vs ith the case, pick the nature of suit code
that is most applicable. Click here for: Nature of Suit Code Decriritiom.

V. Origin. Place an "X" in one of the seven boxes.


Original Proceedings. (1) Cases which originate in the United States district courts.
Removed from State Court. (2) Proceedings initiated in state courts may be remov ed to the district courts under Title 28 U.S.C.. Section 1441.
When the petition for removal is granted. check this box.
Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing
date.
Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. ['se the reopening date as the filing date.
Transferred from Another District. (5) For cases transferred under Title 28 tl.S.C. Section 1404(a) Do not use this for vvithin district transfers or
multidistrict litigation transfers.
Multidistrict Litigation Transfer. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C.
-

Section 1407.
Multidistrict Litigation Direct File. (8) Check this box when a multidistrict case is filed in the same district as the Master MDL docket.

PLEASE NOTE THAT THERE IS NOT AN ORIGIN CODE 7. Origin Code 7 N% as used for historical records and is no longer relevant due to
changes in statue.

VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause Do not cite jurisdictional
statutes unless diversity. Example: U.S. Civil Statute. 47 t SC 553 Brief Description nauthonzed reception of cable service

VII. Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23. F.R.Cv.P
Demand. In this space enter the actual dollar amount being demanded or indicate other demand. such as a preliminary injunction.
Jury Demand. Check the appropriate box to indicate vs hether or not a jury is being demanded.

VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket
numbers and the corresponding judge names for such cases.

Date and Attorney Signature. Date and sign the civil cover sheet.