A federal judge this week stayed the almost 3-year old lawsuit filed by MOX Services against the National Nuclear Security Administration after the parties announced they were close to settling the $200-million-plus case over a now-terminated plutonium conversion plant in South Carolina.
“After mediation, the parties have come to an agreement in principle on proposed settlement terms which, if approved, would resolve this consolidated case in its entirety,” Judge Thomas Wheeler wrote in an order filed Monday in U.S. Court of Federal Claims.
MOX Services and its estranged customer, the National Nuclear Security Administration (NNSA), disclosed the possibly impending settlement on June 21. The parties reached their settlement-in-principle on June 18 after mediation on June 11 to 12, according to the June 21 joint request for a stay.
The settlement, if finalized, would cover nine lawsuits rolled up into one master suit filed in 2016 against the NNSA and its parent agency, the Department of Energy. The suit seeks more than $200 million in damages and withheld fees stemming from the department’s decision to cancel the Mixed Oxide Fuel Fabrication Facility (MFFF): a partially completed plutonium disposal plant at the Savannah River Site in Aiken, S.C.
The NNSA wants to convert the MFFF to a plant to annually produce 50 fissile nuclear weapon cores called plutonium pits by 2030. The agency is blitzing on all fronts to clear obstacles to creating the new pit plant in order to meet a requirement from the 2018 Nuclear Posture Review to produce 80 pits a year by 2030. the agency has tapped the Los Alamos National Laboratory in New Mexico to produce the pits that the converted MFFF does not make.
The NNSA terminated MOX Services’ MFFF construction contract in October after an appeals court undid a lower court’s decision, handed down in a separate lawsuit, that briefly barred cancellation. By then, the NNSA had spent about $5 billion over a decade of construction.
The NNSA and MOX Services must by July 24 file a status update about their settlement negotiations, Wheeler wrote in Monday’s order.
NNSA still must overcome some legal hurdles before turn MFFF into a weapons facility, but the agency is closer to clearing those in 2019 than at any point since it officially asked Congress to end the MFFF.
For example, even as it attempts to settle with MOX Services, the NNSA is also in settlement talks with the state of South Carolina over the fate of the plutonium the MFFF was supposed to turn into commercial reactor fuel. Under federal law, the agency was supposed to remove plutonium from Savannah River by Jan. 1, 2016 if it had not by then processed the material in the MFFF. The law initially called for the agency to remove a 1-metric-ton tranche.
In 2018, South Carolina sued the NNSA in Federal Claims Court to collect what was at that time $200 million in fines related to the agency’s failure to convert or remove this plutonium. The federal government could be on the hook for $200 million more, as the lawsuit covers only two of four years that have passed since the 2016 deadline that allows South Carolina to fine the NNSA up to $100 million for each year the agency does not remove unprocessed plutonium from the state.
The agency and South Carolina must produce a status report by today about possibly settling the 2018 plutonium-removal lawsuit. That status report was not available in the online court docket at deadline for Nuclear Security & Deterrence Monitor.
As part of a separate lawsuit, this one filed in 2016 in the District Court, South Carolina got a federal judge to order the NNSA to remove the first metric ton of plutonium from Savannah River. Half of that previously MFFF-bound ton went to the Nevada National Security Site last year. Another half ton is bound for the Pantex Plant in Amarillo, Texas.
