Sen. Catherine Cortez Masto (D-Nev.) this week agreed to stop blocking nominees for high-level Department of Energy jobs after securing an in-person meeting in Nevada with Energy Secretary Rick Perry and Lisa Gordon-Hagerty, head of DOE’s semiautonomous National Nuclear Security Administration (NNSA).
The senator, her staff, and the DOE top-dogs are set to tour the Nevada National Security Site (NNSS) together May 10, according to an April 24 letter from Perry to Cortez Masto. The senator’s office provided a copy of the letter.
Against Nevada’s wishes, DOE last year shipped half a metric ton of weapon-usable plutonium to the NNSS from the Savannah River Site in South Carolina. The shipment precipitated a nominee hostage situation in March, when Cortez Masto announced she would not allow the Senate to speedily confirm five high-level DOE management candidates until Perry set a date for removing the plutonium from Nevada.
In his April 24 letter, Perry did set a removal date in writing as Cortez Masto sought — essentially the same one the agency provided last year in private communications, later made public, with the administration of then-Nevada Gov. Brian Sandoval (R).
“DOE commits to commencing removal of this material from Nevada beginning in calendar year 2021, and completing the removal by the end of 2026,” Perry wrote in his April 24 letter to Nevada’s senior U.S. senator.
In a Nov. 20 letter to Sandoval’s office, Ike White, Gordon-Hagerty’s chief of staff, said the half metric ton of plutonium was expected to be “prioritized for removal and transferred to [the Los Alamos National Laboratory in New Mexico] by the 2026-2027 timeframe.”
In a roughly one-minute video posted from her official Twitter account late Tuesday, Cortez Masto also said “the Department of Energy agreed that they would no longer ship any plutonium from the state of South Carolina to Nevada.”
The Energy Department did not exactly say that.
Rather, Perry repeated a declaration DOE made in the federal lawsuit Nevada filed last year to block shipment of the plutonium: that the state would receive no more of a 1 metric-ton tranche of plutonium ordered out of South Carolina in 2017 by a federal judge in a different lawsuit.
The NNSA plans to send the other half-metric-ton covered by the 2017 court order to the Pantex nuclear weapons assembly-and-disassembly plant in Amarillo, Texas.
At deadline Friday for Nuclear Security & Deterrence Monitor, the Senate had not scheduled confirmation votes for DOE nominees Cortez Masto blocked. The chamber on Tuesday confirmed William Cooper as the agency’s general counsel.
Other DOE nominees still awaiting floor consideration include William Bookless to be second-in-command at the NNSA and Rita Baranwal to be DOE’s assistant energy secretary for nuclear energy.
The truce over nominees notwithstanding, Cortez Masto warned she could be back on the warpath with DOE at any time.
“While I thank Secretary Perry for working with me on this issue, make no mistake that we will have additional fights ahead of us,” the senator wrote in a statement sent to the press.
Legal Arguments for Evicting Plutonium From NNSS ‘Likely’ in August
Meanwhile, some of Cortez Masto’s most powerful constituents are still open to using the courts to boot the half metric-ton of plutonium out of NNSS as soon as possible.
In a Monday filing in its 2018 lawsuit in the U.S. District Court for Nevada, the state said the Ninth Circuit Court of Appeals in San Francisco will “likely” hear oral arguments by August about why DOE should remove the material now staged in the NNSS Device Assembly Facility.
The department sent the plutonium to NNSS well before Nevada sued on Nov. 30, 2018 to stop the shipment. The state said it sued before it found out the material had arrived.
After DOE declared the shipment in a January filing in District Court, Judge Miranda Du declined to grant Nevada an injunction blocking the already-completed transport. Du did not rule that Nevada’s complaint was moot, as the Energy Department later argued in the Ninth Circuit, where the state appealed Du’s refusal to grant the injunction.
Also this week, Du declined, at least temporarily, to grant Nevada’s formal request for permission to investigate a total of three current and former DOE officials, and to collect information from the agency about plutonium shipments to NNSS over the last 20 years. The agency had asked to the court to protect that information from discovery.
Nevada claims DOE did not follow environmental law when it decided to ship plutonium to the NNSS without conducting a lengthy environmental review. To gather evidence to support that claim, the state wants to depose people involved with the shipment.
Instead of allowing or prohibiting that, Du decided this week to freeze all action in the District Court suit until the Ninth Circuit rules on Nevada’s appeal. After that, Du wrote in an order, Nevada can resubmit its motion to depose and conduct discovery in the District Court suit.
The Energy Department, under the 2017 court order in South Carolina, must move 1 metric ton of plutonium out of the Savannah River Site, and South Carolina, by Jan. 1, 2020. The state might even be on the hook to move more plutonium out of the Palmetto State after that.
In 2016, DOE missed a legal deadline to remove the plutonium after failing to turn it into fuel for commercial nuclear power plants. South Carolina, in court filings, estimated the 2017 court order applies to nearly 10 metric tons of plutonium.
