A federal judge last week denied South Carolina’s motion for summary judgment in a lawsuit demanding that the Department of Energy continue building the Mixed Oxide Fuel Fabrication Facility (MFFF) at the Savannah River Site.
Judge J. Michelle Childs, of U.S. District Court for South Carolina, wrote in her Dec. 28 order that she will not rule on the matter until the Fourth Circuit of the U.S. Court of Appeals decides whether to uphold her ruling to temporarily forbid DOE from terminating the project.
In a summary judgment request filed last June, the state asked Childs to take an additional step and permanently prevent the agency from shuttering the unfinished facility.
The Energy Department last fall formally terminated the MFFF, which was supposed to dispose of 34 metric tons of weapon-usable plutonium under a U.S.-Russian arms control agreement. Layoffs are underway.
After having already spent $5 billion to build the MFFF, the Energy Department estimates it would cost another $17 billion to complete by 2048. Contractor MOX Services has said it can finish construction by 2029 at a cost of $10 billion more.
The Energy Department instead plans to downblend the plutonium at separate facilities at Savannah River and send the resulting material to the Waste Isolation Pilot Plant in New Mexico for permanent disposal.
This was the latest in a series of lawsuits South Carolina Attorney General Alan Wilson has filed over the past five years to keep the federal government from shuttering the MOX project, to force DOE to remove 1 metric ton of plutonium from the state, and to recoup hundreds of millions of dollars in penalty money Wilson believes is owed to the state due to schedule delays on the second matter.
Under the terms of a state-federal agreement, DOE had until Jan. 1, 2016, to remove a ton of the material from South Carolina or reprocess the plutonium via the MOX project. The penalty for missing the deadline is $1 million per day, capped at $100 million annually.
In a lawsuit filed May 25, 2018, in U.S. District Court, the state sought to reverse a May 10 decision from Energy Secretary Rick Perry to terminate the project and repurpose the MFFF to produce plutonium cores for nuclear warheads. Childs issued a preliminary injunction on June 7, halting the Energy Department’s attempt to terminate.
The agency appealed the ruling a week later, and the Fourth Circuit on Oct. 9 granted a stay of the lower court’s decision. That allowed DOE to carry out its termination plan. To date, hundreds of the roughly 1,500 MOX employees have received layoff notices. More are expected in the coming weeks.
Childs’ order last week signals her court could likely do little, if anything, to preserve the MOX project, since an official ruling must first come from the Fourth Circuit Court of Appeals. But since that court has essentially allowed DOE to terminate the project, it is unlikely that an official ruling would reverse that action.
Childs wrote that South Carolina can file again for summary judgment after the appeals court makes a decision on the preliminary injunction. There is no timeline for when a final ruling will be made.
Wilson’s office did not respond to questions.
