1 Maria C. Severson, Esq.

, SBN 173967
Elijah T. Gaglio, Esq., SBN 324799
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.

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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COMPLAINT
 1 TABLE OF CONTENTS
2 I. PURPOSE OF THIS COMPLAINT ........................................................... 1
3 II. FOIA REQUEST ......................................................................................... 3
4 A. FOIA Response ................................................................................. 3
5 B. Administrative Remedy, If Any,
Has Been Exhausted.......................................................................... 5
6
III. BACKGROUND FACTS ........................................................................... 5
7
A. Negative Training; Spent Fuel Canister Misalignment .................... 5
8
B. August 3rd Misalignment of Spent Nuclear Fuel Canister ................ 6
9
C. Failure To Enforce Statutory Duties ................................................. 7
10
D. The Cover Up and False Statements ................................................. 8
11
IV. NRC CONFLICTING STATEMENTS AND
12 FAILURE TO PRODUCE RECORDS ...................................................... 9
13 V. JURISDICTION AND VENUE................................................................ 10
14 VI. PARTIES ................................................................................................... 11
15 VII. STANDARD OF JUDICIAL REVIEW IN FOIA CASES ...................... 12
16 A. Plaintiff’s Freedom of Information Act (FOIA) Requests ............. 13
17 B. Public Interest in Disclosure of Documents
Requested Under the FOIA ............................................................. 14
18
FIRST CLAIM FOR RELIEF ............................................................................. 14
19 VIOLATION OF FOIA
20 SECOND CLAIM FOR RELIEF ........................................................................ 15
DECLARATORY JUDGMENT
21
PRAYER FOR RELIEF ...................................................................................... 16
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i
COMPLAINT
 1 Plaintiff MICHAEL J. AGUIRRE, for his complaint against Defendant
2 UNITED STATES NUCLEAR REGULATORY COMMISSION (NRC), alleges as
3 follows:
4 1. This is an action under the Freedom of Information Act (FOIA), 5
5 U.S.C. § 552, to compel production under a pair of FOIA requests.
6 2. This Court has jurisdiction over this action pursuant to 5 U.S.C. §
7 552(a)(4)(B).
8 I. PURPOSE OF THIS COMPLAINT
9 3. The NRC is a federal agency charged with the duty to continuously
10 inspect nuclear power plants and enforce safety regulations to ensure people and the
11 environment are adequately protected from uses of radioactive material. As a
12 federal agency, the NRC is also charged with the duty to comply with the record
13 production laws under FOIA.
14 4. One nuclear site the NRC is charged with overseeing is the San Onofre
15 site that stores nuclear waste on the beach in San Diego County within the Southern
16 District of California, pictured below:
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24 5. The statutory purpose of the Freedom of Information Act (FOIA) is to

25 “shed light on an agency's performance of its statutory duties.” United States DOJ
26 v. Reporters Comm. for Freedom of Press (1989) 489 U.S. 749, 773.
27 6. This complaint seeks to invoke the Court’s authority under the FOIA
28 to shed light on the Nuclear Regulatory Commission’s (NRC) failure to perform its
1
COMPLAINT
 1 statutory duties to enforce federal regulations adopted to protect the public against
2 ionizing radiation resulting from activities at the San Onofre Nuclear waste site in
3 San Diego County, California. These regulations (10 C.F.R. Part 20) are issued
4 under the Atomic Energy Act of 1954, as amended, and the Energy Reorganization
5 Act of 1974, as amended.
6 7. This complaint also seeks to invoke the Court’s authority under the
7 FOIA to shed light on whether the NRC and the U.S. Attorney’s Office in the
8 Southern District of California performed their statutory duty to enforce Part 20-
9 Standards for Protection Against Radiation § 20.2402 Criminal penalties which
10 states: (a) Section 223 of the Atomic Energy Act of 1954, as amended, provides for
11 criminal sanctions for willful violation or, attempted violation of, or conspiracy to
12 violate, any regulation issued under sections 161b, 161i, or 161o of the Act. The
13 pertinent regulations issued under sections 161b, 161i, or 161o of the Act include
14 the following Subparts C to M.
15 8. During the site’s process for storing nuclear waste, the NRC observed
16 a pattern of ongoing safety violations, including the 3 August 2018 misalignment of
17 a canister storing approximately 100,000 pounds of nuclear waste. Spent nuclear
18 fuel is loaded into canisters that are then lifted vertically and lowered inside a sub-
19 ground silo.
20 9. It was admitted that San Onofre nuclear waste site frequently
21 experienced the bottoms of nuclear waste-filled canisters getting caught on the
22 “shield ring” inside the vault. San Onofre never identified the misalignments as
23 conditions adverse to quality. Consequently, San Onofre never implemented actions
24 that could have prevented the August 3, 2018 near-dropping of a nuclear waste
25 canister holding 100,000 pounds of nuclear spent fuel (referred to as “August 3rd
26 misalignment”). (See Ex. 1)
27 ///
28 ///
2
COMPLAINT
 1 10. Under 10 C.F.R. § 72.75(d)(1), San Onofre plant operators were
2 required to report the August 3rd misalignment to the NRC within 24 hours of the
3 event. The San Onofre plant operators failed to report the event within 24 hours.
4 11. NRC regional administrator Scott Morris admitted he “became aware
5 of this on Monday, August 6th.” Morris admitted he “Informally ** got a call
6 explaining what happened. That began – that raised some concerns, as you might
7 expect -- I – I actually was part of that initial call -- and we elected to begin daily
8 communications with the facility operator.” (Ex. 2: November 29, 2018 CEP
9 Transcript, p. 39) Morris substituted his informal conversations with the plant
10 operator for the strict reporting requirement of 10 C.F.R. § 72.75(d)(1).
11 12. Morris’ statements were contradicted by NRC official Lee Brookhart
12 of Region IV, who represented the “initial call” about the August 3rd misalignment
13 “was made to him, alone, on August 6, 2018.” (Ex. 3: NRC Final FOIA Response)
14 (emphasis added). Brookhart contradicted the statements made by Scott Morris that
15 he had received the call. Inexplicably, Brookhart claimed he has no phone records
16 or other notes relating to these calls. (See Ex. 3)
17 II. FOIA REQUEST
18 13. Tracking the admissions made by the plant operator and the NRC’s
19 Scott Morris and Lee Brookhart, Plaintiff submitted a FOIA request to the NRC on
20 August 28, 2021, seeking:
21 [A]ll records of communications related to the August 3rd event
between NRC agents and agents of the “facility operator” regarding
22 the August 3rd event, for the period August 3, 2018, and September
14, 2018. (See Ex. 4, 2021-000235 FOIA Request)
23

24 14. The NRC admitted it received the request on August 30, 2021 and
25 assigned it number NRC-2021-000235. (Ex. 5: NRC Letter on 8-30-21)
26 A. FOIA Response
27 15. On September 7, 2021, NRC FOIA Officer Stephanie A. Blaney
28 represented there were “no additional records” responsive to Plaintiff’s FOIA
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COMPLAINT
 1 Request of August 28, 2021. (Ex. 6: NRC Final Response to FOIA Request on 9-7-
2 21 re NRC-2021-000235). Ms. Blaney went on to report that “After receiving RIV
3 staff's response, we double-checked with Scott Morris and Lee Brookhart in an
4 effort to clarify the seemingly inconsistent messages about who participated in
5 the ‘initial call.’” (See Ex. 6) (emphasis added) Ms. Blaney finished: these
6 individuals claimed “they both received calls from SCE representatives; these calls
7 were not recorded, nor did these individuals memorialize in writing their respective
8 calls.” (See Ex. 6)
9 16. On September 29, 2021, Plaintiff appealed the NRC’s Final FOIA
10 Response because: (1) the NRC failed to provide all records responsive to the FOIA
11 request, (2) failed to conduct a proper FOIA search for records, and (3) improperly
12 limited the search to only records relating to the August 6th “initial call.” (Ex. 7:
13 Plaintiff’s September 29, 2021, Appeal) The NRC limited the search, even though
14 the request was explicit that what it sought included the daily communications Scott
15 Morris admitted were made between the NRC and plant operator between August 3
16 to September 14, 2018. (See Exs. 1 and 7)
17 17. After the NRC’s September 7, 2021 denial of having any records, and
18 after Plaintiff’s appeal, the NRC admitted there were “13 pages of responsive
19 records were located by Region IV staff.” (Ex. 8: NRC’s Final Response to
20 Plaintiff’s Appeal on 11-17-21) (emphasis added) However, the NRC withheld 5 of
21 the 13 pages and redacted the other 8 pages. (See Ex. 8)
22 18. On December 6, 2022, Plaintiff appealed the NRC’s decision to
23 withhold records.
24 19. The NRC denied Plaintiff’s second appeal on January 5, 2022. The
25 NRC stated Plaintiff “may seek judicial review of this decision in the District Court
26 of the United States in the District” where Plaintiff resides, which is the Southern
27 District of California. (Ex. 10: NRC’s Final Decision re Second Appeal on 1-5-22)
28 ///
4
COMPLAINT
 1 B. Administrative Remedy, If Any, Has Been Exhausted
2 20. Following, the January 5, 2022 denial of Plaintiff’s appeal, thus
3 constituting a “final agency decision,” Plaintiff now follows the NRC’s directive by
4 seeking “judicial review of this decision in the District Court of the United States in
5 the district” wherein Plaintiff resides.
6 21. This Complaint seeks the following: (1) an order requiring the NRC to
7 conduct a Court-supervised search for “all records of communications related to the
8 August 3rd event between NRC agents and agents of the ‘facility operator’
9 regarding the August 3rd event, for the period August 3, 2018, and September 14,
10 2018,” not just communications related to the initial August 6th call; and (2) an
11 order requiring all 13 pages to be produced without redactions.
12 III. BACKGROUND FACTS
13 A. Negative Training; Spent Fuel Canister Misalignment
14 22. Between January 22 to January 31, 2018, the initial loading of nuclear
15 spent fuel canisters began at the San Onofre nuclear waste site.
16 23. Before starting downloads of canisters into the sub-beach storage site,
17 the San Onofre plant operator trained staff using test equipment. The training
18 canisters were smaller than the actual canisters used for nuclear waste storage at
19 San Onofre nuclear site. The training canisters provided about three-quarters of an
20 inch more clearance, which made the lining and lowering of the training canister
21 much easier than would be experienced during actual downloading operations. Staff
22 conducting downloading operations were not trained on the actual differences.
23 When training does not match the actual conditions, it is referred to as “negative
24 training.” (See Ex. 1) (emphasis added)
25 24. During the downloading operations, San Onofre “frequently
26 experienced” the bottoms of canisters getting caught on storage silos. The San
27 Onofre plant operator never identified the misalignments as conditions adverse to
28 quality. Consequently, San Onofre never implemented corrective actions. These
5
COMPLAINT
 1 defects resulted in a 53-minute canister misalignment on August 3, 2018. (Ex. 1)
2 B. August 3rd Misalignment of Spent Nuclear Fuel Canister
3 25. Nuclear waste canister downloading was temporarily stopped after the
4 August 3rd misalignment.
5 26. At the plant’s public meeting, the plant manager falsely told the
6 audience that downloading the nuclear spent fuel had been paused to rest the crew.
7 Two hours later, San Onofre worker David Fritch spoke at the public meeting and
8 informed the public what the plant operator failed to say:
9 MR. FRITCH: Thank you. My name is David Fritch. I am a worker
on the ISFSI project 1About 12:30 August 3rd we were downloading,
10 and the canister didn't download but the rigging came all the way
down. It was gross errors on the part of two individuals. ** There were
11 gross errors on the part of two individuals, the operator, and the
rigger, that are inexplicable. So, what we have is a canister that
12 could have fallen 18 feet. That's a bad day. That happened. You
haven't heard about it, and that's not right. (Ex. 11: Transcript August
13 9, 2018, CEP Meeting pp 104-105) (emphasis added)
14 27. On November 9, 2018, NRC inspector Eric Simpson reported that the
15 canister had become hung up on a shield ring inside the vault into which the
16 canister was to be loaded, shown here:
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25 28. NRC’s Simpson provided a schematic of the ISFSI pad, and the
26 location of the low dose waiting area. (Ex. 1)
27
1
ISFSI is the abbreviation for Independent Spent Fuel Storage Installation the
28 formal name of nuclear waste storage sites such as San Onofre.
6
COMPLAINT
 1

10 29. The photo shows how the view from the low dose area to the
11 downloading pad was obstructed. Thus, on August 3, 2018, San Onofre
12 management and supervisors could not see the canister while it was supposedly
13 being downloaded. San Onofre oversight staff did not have radio headsets and did
14 not monitor communications between the cask loading supervisor, spotter, and
15 vertical cask transporter operator. (See Ex. 1)
16 30. NRC’s Simpson reported that during the August 3rd event, San Onofre
17 personnel failed to note both: (1) the misalignment, and (2) that the weight of the
18 canister was no longer being supported by the important-to-safety lifting
19 equipment. (See Ex. 1) Simpson reported the canister loaded with 100,000 pounds
20 (50 tons) spent nuclear fuel remained stranded for 53 minutes. (Ex. 1)
21 C. Failure To Enforce Statutory Duties
22 31. 10 C.F.R. § 72.75(d)(1) is the first statutory duty NRC failed to
23 perform. This CFR Section required the plant operator to report the disconnection
24 of the aligns holding up canister holding 100,000 pounds of nuclear spent fuel
25 within 24 hours of the important-to-safety equipment becoming disabled.
26 32. Contrary to the requirement, San Onofre nuclear waste operator failed
27 to timely report the notification of the event to the NRC within 24 hours of the
28 August 3rd event; it did not do so until September 14, 2018.
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COMPLAINT
 1 33. Instead, a representative of the plant operator colluded with NRC
2 officials to hide the August 3rd misalignment. NRC regional administrator Scott
3 Morris admitted he “became aware of this on Monday, August 6th.” Morris
4 admitted he “Informally ** got a call explaining what happened. That began – that
5 raised some concerns, as you might expect -- I – I actually was part of that initial
6 call -- and we elected to begin daily communications with the facility operator.”
7 (Ex. 2: November 29, 2018 CEP Transcript, p. 39) Morris substituted his informal
8 conversations with the plant operator for the strict reporting requirement of 10
9 C.F.R. § 72.75(d)(1).
10 D. The Cover Up and False Statements
11 34. During the initial August 6th call, plant operator representative Tom
12 Palmisano committed to “not resume fuel handling until we had done sufficient
13 root cause analysis to truly understand the event, put in place the corrective actions
14 and now proceed.” (Ex. 12: November 29, 2018 CEP Transcript, p. 22)
15 35. The version of this story differed markedly from Palmisano’s first
16 version of why the plant operator did not resume fuel handling. On August 9, 2018,
17 Palmisano told the public the downloading of the waste was halted in order rest the
18 crew:
19 We stop for crew rest, to do maintenance on our equipment. And
we're in one of those stops at this point, and we completed Number 29
20 last week. I expect we'll restart loading in a week or two. (emphasis
added) (Ex. 11: August 9, 2018 CEP Transcript, p. 15)
21

22 36. Then, on July 1, 2019, NRC official Lee Brookhart of Region IV,
23 represented the "initial call" about the August 3rd misalignment “was made to him,
24 alone,” on August 6, 2018. (Ex. 3: NRC Final FOIA Response) (emphasis added)
25 The NRC’s Brookhart contradicted the statements made by the NRC’s Morris, who
26 stated that he had received the call. Inexplicably, Brookhart claimed he has no
27 phone records or other notes relating to these calls involving the plant operator’s
28 near-dropping of a 100,000-pound nuclear waste canister.
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COMPLAINT
 1 IV. NRC CONFLICTING STATEMENTS AND
FAILURE TO PRODUCE RECORDS
2

3 37. Tracking the admissions made by the NRC’s Scott Morris, the plant
4 operator, and Lee Brookhart, Plaintiff submitted a FOIA request to the NRC on
5 August 28, 2021. The request seeks
6 [A]ll records of communications related to the August 3rd event between
NRC agents and agents of the “facility operator” regarding the August 3rd
7 event, for the period August 3, 2018, and September 14, 2018.” (Ex. 4, 2021-
000235 FOIA Request)
8

9 38. The NRC received the request on August 30, 2021, and assigned the
10 request number NRC-2021-000235. (Ex. 5: NRC Letter August 30, 2021)
11 39. On September 7, 2021, NRC FOIA Officer Stephanie A. Blaney
12 represented there were “no additional records” responsive to the August 30, 2021,
13 FOIA request. (Ex. 6) Ms. Blaney went on to report that “After receiving RIV
14 staff's response, we double-checked with Scott Morris and Lee Brookhart in an
15 effort to clarify the seemingly inconsistent messages about who participated in
16 the "initial call." (Ex. 6) Ms. Blaney finished: “Apparently, they both received
17 calls from SCE representatives; these calls were not recorded, nor did these
18 individuals memorialize in writing their respective calls.” (Ex. 6)
19 40. On September 29, 2021, Plaintiff appealed the NRC’s final September
20 7, 2021, response because the NRC failed to provide all records to the FOIA request
21 and failed to conduct a proper FOIA search for records. (Ex. 7: Plaintiff’s Appeal
22 dated 9-29-21)
23 41. Plaintiff’s appeal also addressed the NRC’s “seemingly inconsistent
24 messages” because on July 1, 2019, NRC official Lee Brookhart of Region IV,
25 represented the "initial call" about the August 3rd misalignment was made “to him,
26 alone,” on August 6, 2018. (Ex. 3: NRC Final FOIA Response 7-1-19) The NRC’s
27 Brookhart contradicted the statements made by Scott Morris, who stated that he had
28 received the call. Inexplicably, Brookhart claimed he has no phone records or other
9
COMPLAINT
 1 notes relating to these calls involving the plant operator’s near dropping of a
2 100,000-pound nuclear waste cannister.
3 42. In response to Plaintiff’s appeal, the NRC made another round of
4 misleading and contradictory statements: “as a result of the supplemental search
5 conducted during the processing of your appeal, 13 pages of responsive records
6 were located by Region IV staff.” (Ex. 8)
7 43. The NRC withheld 5 of the 13 pages and redacted the other 8 pages
8 asserting Exemption 4 and Exemption 7. (See Ex. 8)
9 44. On December 6, 2021, Plaintiff submitted a second appeal relating to
10 the NRC’s decision to redact and withhold records critical to the public’s
11 understanding of the August 3rd event and sought all redacted information withheld
12 in the NRC’s response dated November 17, 2021. (Ex. 9)
13 45. On January 5, 2022, the NRC denied Plaintiff’s second appeal stating
14 it was a “final agency decision” and Plaintiff “may seek judicial review of this
15 decision in the district court of the United States in the district…” where Plaintiff
16 resides. (Ex. 10)
17 V. JURISDICTION AND VENUE
18 46. This Court has jurisdiction pursuant to 28 U.S.C. § 1331 because this
19 action arises under the laws of the United States, in particular, 5 U.S.C. § 552. This
20 Court also enjoys jurisdiction pursuant to 5 U.S.C. § 552(a)(4)(B), under which,
21 “the district court of the United States in the district in which the complainant
22 resides, or has his principal place of business… has jurisdiction to enjoin the
23 agency from withholding agency records and to order the production of any agency
24 records improperly withheld from the complainant” because, among other things,
25 Plaintiff lives in this District.
26 47. Venue is proper in this District pursuant to 5 U.S.C. § 552(a)(4)(B)
27 and 28 U.S.C. § 1931 because, among other things, Plaintiff’s principal place of
28 business is in this District.
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COMPLAINT
 1 48. In this matter, the NRC issued its “final agency decision” on January
2 5, 2022, wherein the NRC stated Plaintiff “may seek judicial review of this decision
3 in the District Court of the United States in the District” where Plaintiff resides,
4 which is the Southern District of California. (Ex. 10: January 5, 2022, Final Agency
5 Decision) Plaintiff by this Complaint is doing exactly that.
6 VI. PARTIES
7 49. Plaintiff Michael Aguirre is a resident of this District within the City
8 of San Diego, California. Plaintiff brings this action in his personal capacity as a
9 Certified Fraud Examiner and former elected official with a strong personal interest
10 in open government that operates transparently as to its conduct and records.
11 50. Defendant United States Nuclear Regulatory Commission (NRC) is a
12 federal agency that has the records Plaintiff requested.
13 51. The true names and capacities of those Defendants sued herein as
14 DOES 1 through 10, inclusive, whether individual, governmental, or otherwise, are
15 unknown to Plaintiff, who sues those Defendants by such fictitious names. When
16 the DOE parties’ true names and capacities and their actual involvement in the
17 matters alleged herein are ascertained, Plaintiff will amend this complaint to
18 accurately reflect the same.
19 52. Plaintiff is informed and believes, and thereon alleges, that each of the
20 fictitiously named defendants designated hereunder as a DOE is responsible in
21 some manner for the occurrences alleged herein, and that Plaintiff’s damages as
22 herein alleged were proximately caused or contributed to by their conduct.
23 53. Plaintiff is informed and believes, and thereon alleges, that at all
24 relevant times herein, each of the defendants was the agent, employee, alter ego,
25 and/or co-conspirator of one or more of the remaining defendants and in doing the
26 acts alleged herein, was acting within the purpose, course and scope of such
27 agency, employment joint venture or conspiracy, and with the consent, permission
28 or ratification of one or more remaining defendants.
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COMPLAINT
 1 VII. STANDARD OF JUDICIAL REVIEW IN FOIA CASES
2 54. FOIA provides a statutory basis for citizens to request documents from
3 the federal governments and its various departments, agencies and/or officers. See
4 generally 5 U.S.C. § 552 et seq. The overriding purpose of FOIA is to “mandate
5 policy of broad disclosure of government documents” and maximum feasible public
6 access to government information. Powell v. U.S. Dept. of Justice, 569 F. Supp.
7 1192, 1197 (N.D. Cal. 1983) (citing Church of Scientology v. United States Dep’t of
8 the Army, 611 F.2d 738 741–42 (9th Cir. 1979)).
9 55. The U.S. Supreme Court has long recognized that Congress’ intent in
10 enacting FOIA was to implement “a general philosophy of full agency disclosure.”
11 United States Dep’t of Justice v. Reports Comm. for Freedom of the Press, 489 U.S.
12 749, 754 (1989). The Supreme Court has explained that, without question, the Act
13 is broadly conceived. It seeks to permit access to official information long-shielded
14 unnecessarily from public view and attempts to create a judicially enforceable
15 public right to secure such information from possibly unwilling official hands. EPA
16 v. Mink, 410 U.S. 73, 80 (1973).
17 56. U.S. Supreme Court precedent establishes the FOIA is designed to
18 “pierce the veil of administrative secrecy and to open agency action to the light of
19 public scrutiny.” Dep’t of the Air Force v. Rose, 425 U.S. 352, 361 (1976). FOIA’s
20 basic purpose “is to ensure an informed citizenry, vital to the functioning of a
21 democratic society, needed to check against corruption and to hold the governors
22 accountable to the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214,
23 242 (1978).
24 57. A district court’s review of a government agency’s decision to
25 withhold documents requested under FOIA is de novo, and the burden is on the
26 agency to justify its actions of nondisclosure. See 5 U.S.C. § 552(a)(4)(B);
27 Kreindler v. Department of Navy, 363 F.Supp 611, 613 (D.C.N.Y. 1973). In FOIA
28 cases, the government bears the burden of establishing that any exemption from
12
COMPLAINT
 1 disclosure applies. 5 U.S.C. § 552(a)(4)(B); Ortiz v. U.S. Dep’t of Health and
2 Human Services, 70 F.3d 729, 732 (2nd Cir. 1995), certiorari denied 517 U.S. 1136
3 (1996). Courts must construe FOIA’s statutory exemptions narrowly and in favor of
4 disclosure. John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989).
5 A. Plaintiff’s Freedom of Information Act (FOIA) Requests
6 58. The request at issue, as described above seeks: “all records of
7 communications related to the August 3rd event between NRC agents and agents of
8 the “facility operator” regarding the August 3rd event, for the period August 3,
9 2018, and September 14, 2018.” (Ex. 4, 2021-000235 FOIA Request)
10 59. As described above, on December 6, 2021, Plaintiff submitted a
11 second appeal relating to the NRC’s decision to redact and withhold records critical
12 to the public’s understanding of the August 3rd misalignment and sought all
13 redacted information withheld in the NRC’s response dated November 17, 2021.
14 (Ex. 9)
15 60. Plaintiff appealed the NRC’s assertion of Exemption 4 because the
16 NRC did not provide an adequate reason that redacted information included “trade
17 secrets and commercial or finical information obtained from a person and
18 privileged or confidential.” Additionally, Plaintiff cited the NRC’s failure to
19 reasonably segregate portions of material withheld. (Ex. 9)
20 61. Plaintiff also appealed the NRC’s assertion of Exemption7(c) because
21 the exemption does not apply if the disclosure is not reasonably expected to
22 constitute an unwarranted invasion of privacy. (Ex. 9) The NRC failed to provide a
23 sufficient basis that the information withheld will be an invasion of privacy. The
24 NRC’s assertion of Exemption 7(f) was similarly flawed because the NRC failed to
25 show how disclosure of the records could reasonably be expected to endanger the
26 life of physical safety of any individual. (Ex. 9)
27 62. On January 5, 2022, the NRC issued a “final agency decision” and
28 stated Plaintiff “may seek judicial review of this decision in the District Court of
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COMPLAINT
 1 the United States in the District” in which plaintiff resides; here, it is the Southern
2 District of California. (Ex. 10, January 5, 2022, Final Agency Decision)
3 63. Following two appeals relating to the NRC’s failure to produce records
4 responsive to the FOIA request, Plaintiff still seeks all redacted information
5 withheld in the NRC’s response. Accordingly, Plaintiff filed the instant complaint.
6 B. Public Interest in Disclosure of Documents
Requested Under the FOIA
7

8 64. Plaintiff’s FOIA request would inform the public about the NRC
9 violations of public trust involving the threat to public health and safety and the
10 general welfare of over eight million people living in and around the San Onofre
11 nuclear waste site located on a San Diego beach. There is an overwhelming public
12 interest in a full and thorough airing of serious abuses that did in fact occur at San
13 Onofre and the hope such abuses will not occur in the future.
14 65. The information sought will show the extent to which the NRC has
15 colluded with the utilities it is supposed to regulate so as to prevent the disclosure
16 of on-going safety violations and whether the NRC failed to take the necessary
17 steps to enforce safety regulations at the nuclear site. Disclosure will shine light on
18 whether the NRC’s actions are failing to protect public health, safety, and welfare.
19 FIRST CLAIM FOR RELIEF
20 VIOLATION OF FOIA
21 66. The allegations made in the paragraphs above are fully alleged here by
22 reference.
23 67. The NRC failed to conduct a proper search under the FOIA related to
24 Plaintiff’s requests, which seeks: “all records of communications related to the
25 August 3rd event between NRC agents and agents of the ‘facility operator’
26 regarding the August 3rd event, for the period August 3, 2018, and September 14,
27 2018.” Rather, the NRC limited its search to communications related to the August
28 6th “initial call.”
14
COMPLAINT
 1 68. The NRC at first failed to comply with FOIA by failing to search for,
2 identify and provide the records within 20 days. It was only after an appeal that
3 records were even searched for and identified. That alone is a violation.
4 69. The NRC next improperly asserted Exemptions 4 and 7 and is
5 withholding records related to Plaintiff’s FOIA request including, but not limited
6 to, the 8 redacted pages and 5 pages withheld in their entirety.
7 70. The NRC failed to comply with its duty to reasonably segregate
8 disclosable portions of the public records from portions that are exempt.
9 71. Plaintiff has exhausted any administrative remedies and the NRC has
10 made an adverse decision by denying Plaintiff’s appeal and withholding public
11 records responsive to Plaintiff’s FOIA request.
12 72. FOIA instructs the federal government, including the NRC, to publicly
13 release the requested records.
14 73. Upon substantially prevailing, Plaintiff should be awarded his
15 attorneys’ fees under 5 U.S.C. § 552(a)(4)(E).
16 SECOND CLAIM FOR RELIEF
17 DECLARATORY JUDGMENT
18 74. The allegations made in the paragraphs above are fully alleged here by
19 reference.
20 75. FOIA instructs the federal government, including the NRC, to publicly
21 release the requested records.
22 76. The NRC failed to conduct a proper search under the FOIA related to
23 Plaintiff’s requests, which seeks: “all records of communications related to the
24 August 3rd event between NRC agents and agents of the ‘facility operator’
25 regarding the August 3rd event, for the period August 3, 2018, and September 14,
26 2018.” Rather, the NRC limited its search to communications related to the August
27 6th “initial call.”
28 ///
15
COMPLAINT
 1 77. The NRC improperly asserted Exemptions 4 and 7 and is withholding
2 records related to Plaintiff’s FOIA request including, but not limited to, the 8
3 redacted pages and 5 pages withheld in their entirety.
4 78. The NRC failed to comply with its duty to reasonably segregate
5 portion of a record from portions of the record that are exempt.
6 79. Plaintiff has exhausted his administrative remedies and the NRC has
7 made an adverse decision by denying Plaintiff’s appeal and withholding public
8 records responsive to Plaintiff’s FOIA request.
9 80. Plaintiff seeks declaratory judgment that the NRC produce Plaintiff’s
10 requested records immediately pursuant to FOIA.
11 PRAYER FOR RELIEF
12 WHEREFORE, Plaintiff respectfully prays that:
13 1. The Court declare that the NRC’s failure to respond to Plaintiff’s
14 FOIA request was unlawful;
15 2. The Court order the NRC to conduct a Court-supervised search of “all
16 records of communications related to the August 3rd event between NRC agents
17 and agents of the “facility operator” regarding the August 3rd event, for the period
18 August 3, 2018, and September 14, 2018,” not just communications related to the
19 initial August 6th initial call;
20 3. The Court order the NRC to produce the identified 13 pages without
21 redactions.
22 4. Criminal penalties pursuant to 10 CFR § 20.2402;
23 5. The Court order the NRC to award attorney’s fees to Plaintiff pursuant
24 to 5 U.S.C. § 552(a)(4)(E) in an amount subject to proof; and
25 ///
26 ///
27 ///
28 ///
16
COMPLAINT
 1 6. The Court grant such other and further relief as this Court may deem
2 just and proper.
3 Respectfully submitted,
4 AGUIRRE & SEVERSON, LLP
5

6 Dated: January 20, 2022 /s/Maria C. Severson

Maria C. Severson, Esq.,
7 Attorney for Plaintiff
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17
COMPLAINT
 SONGS_transcript.txt
to allow access from the transfer cask into the ISFSI vault.
As you can see, the mating device is open in this photo.
This photo shows the vertical cask transporter being aligned

to the mating device,

the vertical cask transporter is positioned

over the mating device, properly aligned,

and then they're bolted together.
The mating device door is closed during this process.

This picture shows the spotters,

those are the people in the lift baskets,

pulling the slings through the sheaths

on the vertical cask transporter crossbeam.

The important-to-safety yellow slings are connected

to the canister through lift cleats in the shield cone,

and anchored to the vertical cask transporter.

This photo shows the canister ready for downloading,

the vertical cask transporter lift beam has been raised,

and the full load

of the spent fuel canister is being suspended.

The mating device door is open,

allowing the canister to be downloaded into the ISFSI vault.

So, what exactly happened on August 3rd?

This slide shows a schematic of the ISFSI pad,

and the location of the low dose waiting area.

The slide also shows a photo of the view from that location,
as you can see from the photo to the right,
the low dose waiting area has an obstructed view

of what is happening out on the pad.

Before downloading, all oversight staff,

other than the spotter

and the vertical cask transporter operator, are moved
to the low dose area.
Page 7
 SONGS_transcript.txt
From this position, none of the management

or supervisory oversight staff from San Onofre

or Holtec could observe the downloading of the canister.
San Onofre oversight staff did not have radio headsets,

and did not monitor communications

between the cask loading supervisor, spotter,
and vertical cask transporter operator.

This slide shows photos of the vertical cask transporter,

and the control panel.

The vertical cask transporter operator attempted
to lower the canister into the vault

by lowering the vertical cask transporter lift beam.

The NRC identified numerous deficiencies involving

the operation of the vertical cask transporter.

First, the training program did not ensure

the vertical cask transporter operator was capable

of performing the canister download.

Second, the vertical cask transporter operator is seated

behind shielding, and cannot see the canister being lowered

into the vault, third, cameras are not used

to aid the vertical cask transporter operator,

or oversight staff during downloading operations.
Fourth, the vertical cask transporter operator

did not monitor data available

on the vertical cask transporter control panel

during the download.
As a result, the vertical cask transporter operator
did not identify a decrease in hydraulic pressure,

which in and of itself is an indication

of a loss of mode condition.

Fifth, procedures did not provide adequate instructions

Page 8
 SONGS_transcript.txt
for the monitoring
of critical parameters during the download.
Lastly, the August 3rd event was the first time

for the vertical cask transporter operator

to download a spent fuel canister into the vault,

and no supervisory oversight was available

on the vertical cask transporter.
This slide shows a spotter in position

to observe the download,

the spotter was the only person capable of observing

the canister being downloaded during this event.

NRC identified numerous deficiencies involving

the spotter positioning, first,

the training program did not ensure the spotter was capable

of performing a canister download.

Second, procedures did not provide adequate instruction

for monitoring of critical parameters

during download processes.

Third, the August 3rd event was the first time

for the spotter to download a spent fuel canister

into the ISFSI vault, and no supervisory oversight

was available in the lift basket.

Fourth, no cameras were provided for management

and supervisory oversight to observe the download.

Fifth, once the downloading was in progress,

the spotter moved the lift to the side,
where he could no longer directly observe

the canister's progress into the ISFSI vault, and lastly,

the spotter did not know how

to determine the important-to-safety slings for slack.

Communications during the download were informal,
and failed to relay critical information,
Page 9