In a housecleaning move to continue wrapping up legal issues surrounding the terminated plutonium recycling plant at the Savannah River Site, a federal judge in South Carolina last week officially dismissed a 2018 state lawsuit against the Department of Energy.
In the two-page decision filed on Feb. 20, District Judge J. Michelle Childs wrote that she no longer has jurisdiction over the project’s future since the U.S. Court of Appeals for the Fourth Circuit vacated her previous decision to temporarily halt termination of the Mixed Oxide Fuel Fabrication Facility (MFFF). As a result, Childs decided to honor the Energy Department’s October 2019 motion to dismiss the case, a year after the higher court enabled DOE to formally cancel the MOX program.
South Carolina had tried to take the matter up with the U.S. Supreme Court, which in October 2019 refused to hear the case.
In May 25, 2018, South Carolina sued the federal agency in an effort to preserve the MFFF, which was supposed to convert 34 metric tons of weapon-usable plutonium into commercial nuclear fuel, per the terms of the 2000 U.S.-Russian Plutonium Management and Disposition Agreement. The lawsuit came two weeks after then-Energy Secretary Rick Perry announced his agency was terminating the MOX project, citing cost overruns and delays in work.
The Energy Department estimated that MOX would cost $51 billion over its lifetime, three times the initial estimate when construction began in 2007. That included $7 billion that had already been spent. The preferred alternative, in which facilities at Savannah River would be used to dilute the plutonium for disposal at the Waste isolation Pilot Plant in Carlsbad, N.M., is projected to cost only $17 billion.
The $7 billion spent on MOX before cancellation covered project design work and some construction. The Energy Department says the project was roughly 35 percent complete at the time of termination, based on how much more it would cost.
In its lawsuit, the state argued DOE had not done the necessary safety work to shutter the facility, including issuing an environmental impact statement (EIS) on the risks and impacts involved with termination. The state wanted to preserve MOX based on the economic hit it would suffer from eliminated the 2,000 jobs the project provided. In addition, South Carolina wanted MOX to continue so it would not be left with unwanted plutonium at Savannah River.
Childs concurred, issuing an injunction on June 7, 2018, temporarily preventing DOE from moving forward with cancellation. The move allowed MOX construction to continue during the case. A week later, DOE appealed the ruling and the matter was elevated to the appeals court. Childs paused the District Court case until after the appeals court made its decision.
On Oct. 9, 2018, the higher court lifted the injunction, allowing DOE to formally terminate the project a day later.
It is unclear why Childs or DOE waited more than a year to formally close out the case in her court. But on Oct. 22, 2019, DOE filed a motion to dismiss the suit. South Carolina did not file any objections prior to Childs’ decision to grant dismissal.
