Halting construction on the controversial Mixed Oxide Fuel Fabrication Facility (MFFF) is not only legal, but it’s the quickest way to remove nuclear weapon-usable plutonium from South Carolina, the Department of Energy said Friday in a brief filed in federal court.
The DOE reply brief in the Fourth Circuit Court of Appeals provides more pieces of the argument the agency will use in nearly a month to attempt to convince a federal judge that a lower court was wrong to prohibit the end of construction on the facility.
South Carolina in May sued DOE in U.S. District Court in South Carolina to head off the agency’s plans to convert the MFFF to a factory for nuclear-weapon cores instead of a processing facility for converting weapon-usable plutonium into fuel for commercial nuclear power plants.
In Friday’s brief, DOE said it can stop construction without first conducting an environmental review that South Carolina Attorney General Alan Wilson, in an Aug. 10 appellee brief, said is necessary. The state said if DOE terminates the project, the Savannah River Site could effectively become a permanent plutonium repository.
But DOE said Friday it not only never proposed turning South Carolina into a permanent plutonium repository, but that an alternative disposal method — using planned Savannah River Site infrastructure to prepare the material for burial at the agency’s Waste Isolation Pilot Plant in New Mexico — would get plutonium out of the state sooner than the MFFF.
That means “it is quite wrong to insist that DOE was required to complete review of its alternative options [for canceling MFFF] under the National Environmental Policy Act (NEPA) before halting construction,” because the proposed cancellation is not part of a decision to create a plutonium repository.
In a document sent to Congress earlier this year and published online by the Union of Concerned Scientists, DOE said it could start shipping plutonium out of South Carolina with its MFFF alternative by 2026, compared with sometime in the 2040s or later by using the MFFF.
The Energy Department and South Carolina are set for oral arguments in Richmond, Va., on Sept. 27. If the agency persuades the appeals judge to lift the lower court’s injunction, the agency would be clear to resume planned layoffs.
Congress is still a hurdle, as the recently passed National Defense Authorization Act for fiscal 2019 orders DOE to keep building the facility for its intended purpose — unless the agency again certifies that its alternative disposal method is about half as expensive as finishing MFFF. DOE has already done that once. The 2018 National Defense Authorization Act provided the same waiver authority to halt MFFF, but Congress essentially postponed the effective date of the waiver by requiring certification again as part of the 2019 bill.
