As Congress moves to fund Department of Energy conversion of the Mixed Oxide Fuel Fabrication Facility (MFFF) into a new nuclear-weapon parts plant, a federal attorney is urging the Supreme Court to bury a South Carolina lawsuit that seeks to block the government from shuttering the facility.
Redeploying the same legal argument that helped seal the building’s fate last year, the attorney representing DOE and its semiautonomous National Nuclear Security Administration (NNSA) said the high court should decline to hear South Carolina’s case because the state was not legally entitled to sue over harm that it might or might not suffer in the distant future.
The MFFF was designed to turn 34 metric tons of weapon-usable plutonium into fuel for commercial reactors, under a reciprocal materials-reduction pact signed with Russia after the end of the Cold War. The NNSA’s contractor, MOX Services, broke ground on the plant in 2007, but DOE decided the facility was too expensive to finish. During the Donald Trump administration, the NNSA formalized plans to convert the facility into a pit plant.
In a lawsuit filed in 2018, South Carolina said converting the MFFF into a plant to make plutonium pits for future nuclear arsenal refurbishments would leave the Energy Department without a means of disposing of tons of weapon-usable plutonium at the Savannah River Site, sticking the state permanently with the material.
A U.S. District Court judge agreed, but a federal appeals court rejected that argument and lifted the lower court’s ban on shuttering the MFFF. The NNSA then canceled the MFFF prime contract in October 2018. The state quickly notified the lower courts that it would reserve the right to appeal to the Supreme Court, which it subsequently did this summer.
It will take the approval of four of the nine Supreme Court justices to admit South Carolina’s argument into the highest court in the land. At deadline Friday for Nuclear Security & Deterrence Monitor, the justices had not decided whether to hear the case during the next court term, which begins Oct. 7.
In dueling 2020 appropriations and authorizations bills working their way through Congress, House and Senate are still arguing about whether to allow the NNSA to begin converting the MFFF for pit duty beginning in fiscal 2020. The Senate favors swift action, the House some delay.
Meanwhile, Senate appropriators last week joined the House colleagues in agreeing to fully fund DOE’s planned replacement for the MFFF, the Surplus Plutonium Disposition program.
The full Senate must still vote on the DOE spending bill that includes the $79 million worth of 2020 funds for the so-called dilute-and-dispose approach. The legislation would also provide $220 million to continue placing the MFFF into construction stasis and design the pit plant the NNSA wants to build on top of the partially constructed facility. The dilute-and-dispose money would concentrate on long-lead procurements for Savannah River, including glove boxes. The facility will use three of these, with one being a spare for the active pair that will initially handle dilute-and-dispose touch labor.
The upper chamber on Wednesday tried to set up a vote on its 2020 DOE spending bill for next week, but partisan gridlock over funding for President Donald Trump’s proposed southern-border wall dragged down the vote, leaving the bill in limbo at deadline.
