A federal judge this week refused to lift a preliminary injunction preventing the Department of Energy from canceling the unfinished Mixed Oxide Fuel Fabrication Facility (MFFF) at the Savannah River Site in Aiken, S.C.
The Tuesday ruling means project prime contractor CB&I AREVA MOX Services will continue building the plutonium-conversion plant — which is by the company’s own estimates more than 10 years behind schedule and about $5 billion over budget — at least until an appeals court rules on a separate DOE petition to overturn the injunction.
The Energy Department argued the injunction was no longer necessary because the agency had, at U.S. District Judge J. Michelle Childs’ direction, delayed scheduled layoffs at the plant and lifted a partial stop-work order handed down to the contractor before the state of South Carolina sued to block the agency from canceling the project.
Childs did not buy that argument.
“When an injunction both nullifies previous actions and enjoins future actions, compliance with the injunction’s retroactive portions does not make the injunction as a whole, and specifically its prospective portions, moot,” Childs wrote in her order refusing DOE’s bid to stay the injunction.
The department asked Childs on June 15 to lift the injunction, a week after the judge ordered it. The same day, the agency appealed Childs’ injunction with the Fourth Circuit Court of Appeals, which had not ruled on the matter at deadline Friday for Nuclear Security & Deterrence Monitor.
Meanwhile, with the government’s appeal pending, South Carolina is escalating its case in the District Court by petitioning Childs for a permanent injunction against closing the MFFF. Childs had not ruled on that motion at deadline Friday, nor had the government responded to the state’s motion.
South Carolina sued the Department of Energy in May, demanding the agency’s semiautonomous National Nuclear Security Administration (NNSA) finish building the MFFF and get on with the facility’s planned mission under a U.S.-Russian arms control deal to convert 34 metric tons of surplus weapon-grade plutonium into commercial reactor fuel. The contractor says it will take until 2029 to start that mission, while the NNSA says it will take until 2048.
The NNSA wants to turn the MFFF into a factory capable of annually producing 50 plutonium nuclear-warhead cores by 2030. The agency, which runs the Department of Energy’s active nuclear-weapon programs, says it can more cheaply dispose of the surplus plutonium by diluting it at proposed Savannah River Site facilities, then burying the processed material deep underground at the agency’s Waste Isolation Pilot Plant near Carlsbad, N.M.
CB&I AREVA MOX Services sued the NNSA in the U.S. Court of Federal Claims in 2016, seeking some $200 million in damages and fees the company claims its customer illegally withheld. Earlier in June, Judge Thomas Wheeler awarded MOX Services $20 million as a result of the company’s motion for summary judgment in the federal claims case. MOX Services claimed, and Wheeler ultimately agreed, that the NNSA clawed back that amount of fees before the MFFF prime contract permitted it to do so. The full federal claims case is set to go to trial in 2019.
