After Nevada demanded in a lawsuit that the Department of Energy produce detailed records of all plutonium shipments to and within the state during the last 20 years, the agency on Thursday asked a federal judge to dismiss the case entirely.
Nevada sued DOE and its National Nuclear Security Administration (NNSA) in November to stop the shipment of weapon usable plutonium to the Nevada National Security Site (NNSS) from the Savannah River Site in South Carolina. The NNSA acknowledged in January that it had shipped half a metric ton of plutonium to NNSS before Nevada even sued.
The state wants to prove that the NNSA’s decision to move the plutonium to the former Nevada Test Site was illegal because the agency did not complete a lengthy environmental review before deciding to move, and then actually moving, the special nuclear material. In its search for evidence, Nevada served DOE with a roughly 30-page list of demands for information, including a detailed manifesto for every shipment of plutonium to or within the state since 1999.
The U.S. attorney representing DOE and the NNSA made Nevada’s wish-list public in a court filing on Monday, then quickly followed up with a motion to dismiss on Thursday. The whole case is moot, now that the plutonium is already at NNSS’ Device Assembly Facility, the U.S. attorney said. Besides, the feds stated, DOE and the NNSA have moved weapons-grade plutonium to NNSS for years without informing state officials or Nevada’s congressional delegation about the timing of these shipments.
“Currently, and for some time, operations are performed at the NNSS that help sustain and safely maintain the Nation’s nuclear arsenal,” the U.S. attorney wrote in the Thursday motion to dismiss. “Many of these vital operations involve the storage and use of weapons-useable plutonium. Thus, for decades, the United States Department of Energy has transported plutonium through the State of Nevada to the NNSS for storage and use.”
The NNSA must move 1 metric ton of plutonium out of South Carolina by Jan. 1, 2020, to comply with a federal court order handed down in 2017 in a separate lawsuit. The half-ton not moved to NNSS will be sent to the NNSA’s Pantex Plant in Amarillo, Texas, if it has not already. The NNSA refuses to comment on the timetable for shipping plutonium, citing security concerns.
In its Monday motion to block Nevada from gathering details about two decades worth of plutonium shipments, the federal government said Nevada is not legally entitled to go information-fishing about last year’s shipment, and that U.S. District Judge Miranda Du should decide the case based solely on the administrative record the NNSA created of its internal decision-making about the shipment. The DOE branch had agreed to submit its administrative record April 12 but now will not file until after Du rules on Monday’s motion — assuming Du does not dismiss the case first.
In a March 29 proposed scheduling order, Nevada claimed that, among other things, the NNSA relied on information outside of its administrative record to formulate and execute the plan for last year’s plutonium shipment. The court must get access to, and review, that information before ruling on the case, Nevada said.
Also, attorneys for Nevada wrote in the March 29 filing, Du has already cleared the state to perform discovery as part of a Feb. 2, 2019, order that called on the parties to set a case schedule — including a schedule for discovery.
Besides the detailed plutonium shipping manifest, Nevada also wants to depose NNSA officials Henry Allen Gunter, Bruce Diamond, and Steven Lawrence. Gunter is the plutonium program manager at the Savannah River Site. Diamond is the NNSA’s top lawyer. Lawrence is the manager of the NNSA’s Nevada Field Office. The federal government sought to block those depositions on the grounds that they are not part of the agency’s forthcoming administrative record.
The parties were supposed to file a proposed case schedule April 2, but they deadlocked over whether discovery was allowed. On March 29, they filed separate proposed schedules for the rest of the lawsuit. The U.S. attorney proposed Nevada file a motion for summary judgment in the case in July. Nevada proposed that it be allowed to conduct discovery and deposition of NNSA experts until August.
