Sen. Lindsey Graham (R-S.C.) has demanded the U.S. Supreme Court consider the case of South Carolina and the Mixed Oxide Fuel Fabrication Facility (MFFF), which the state’s senior senator says has turned the Savannah River Site into a permanent plutonium dumping ground.
Graham made his argument in an amicus curiae brief filed with the court on July 11. It is the first filing in the case by any party other than the state of South Carolina, which is appealing a lower court’s 2018 ruling that it is too soon to claim it has been turned into a plutonium repository.
In his brief, Graham argued that the U.S. Fourth Circuit Court of Appeals unconstitutionally denied South Carolina its day in court by ruling the state’s complaint about hosting weapon-usable plutonium was premature.
“The fundamental question presented in this case is whether a state can be denied access to the judiciary to air a grievance against the federal government when the federal government fails to comply with a statute enacted by Congress for the protection of that state,” Graham wrote in his brief. “The answer must be no.”
Since 2002, the Department of Energy has shipped roughly 10 metric tons of weapon-usable plutonium to the Savannah River Site near the city of Aiken. The agency intended to turn the plutonium — as part of a 34 metric-ton tranche of such material — into fuel for commercial nuclear power reactors using the now-canceled MFFF.
After delays and cost overruns for which DOE and the MFFF prime contractor, MOX Services, blamed one another, the agency in 2014 failed to meet the legal deadline to begin processing plutonium at the plant. The Energy Department then failed to meet another legal deadline in 2016 for beginning removal of plutonium from South Carolina. Both deadlines were codified in the 2003 National Defense Authorization Act: the statute Graham cited in his brief.
The Energy Department says it will still remove the plutonium from South Carolina beginning in 2028 using a technique called dilute-and-dispose: chemically weakening the plutonium and mixing it up with concrete-like grout called stardust at Savannah River. The federal agency would then bury the material deep underground at its Waste Isolation Pilot Plant near Carlsbad, N.M. Graham and South Carolina worry the New Mexico facility might never accept the material.
The Supreme Court meets in terms that run from October through June or early July. At deadline for Nuclear Security & Deterrence Monitor, the court had neither declined to consider the case nor scheduled arguments in the case for the term scheduled to begin Oct. 7.
The lawsuit that South Carolina has appealed all the way to the Supreme Court is only one of several involving the plutonium intended for the MFFF. In a separate lawsuit, the state seeks hundreds of millions of dollars in fees from DOE for the federal government’s blown deadlines. The parties failed to settle that suit and are due to brief the judge about the case by the end of July.
