A federal judge ruled Thursday the U.S. Department of Energy cannot legally stop work at the Savannah River Site’s multibillion-dollar Mixed Oxide Fuel Fabrication Facility plutonium recycling plant, finding the agency did not follow safety and environmental protocols before attempting to shutter the project.
U.S. District Judge J. Michelle Childs ruled in favor of the state’s motion for a preliminary injunction, specifically directing that she must authorize any further attempts by DOE to terminate the Mixed Oxide Fuel Fabrication Facility (MFFF). The agency had planned to issue a full stop work order on or around June 11, which would effectively give MFFF workers a 60-day notice that they would be laid off as the program wound down.
“If the Full Stop Work Order is issued, the State also will be robbed of the opportunity to obtain a meaningful judgment on the merits of its claims that the Federal Defendants’ decision to terminate the MOX Facility [MFFF] and leave South Carolina as the permanent repository for plutonium is unlawful,” Childs wrote in her 36-page order.
The Department of Energy has spent $5 billion on the MFFF, which is behind schedule and over budget. For several years it has sought to kill the facility, which is intended to convert 34 metric tons of surplus plutonium into commercial reactor fuel.
Childs said the Energy Department needs to issue an environmental impact statement (EIS) on the risks and impacts of terminating work at the facility near Aiken, S.C., as the federal National Environmental Policy Act requires.
The environmental impact statement should address how DOE plans to move forward with its preferred alternative to MFFF, called dilute-and-dispose, Childs wrote. Under that approach, DOE would chemically weaken the plutonium at proposed Savannah River Site facilities, mix it with concrete-like grout called stardust, and bury it deep underground at the agency’s Waste Isolation Pilot Plant near Carlsbad, N.M.
She added that Energy Secretary Rick Perry’s May 10 partial work stoppage order – which prevents MFFF contractor CB&I AREVA MOX Services from hiring additional personnel or beginning new construction at the unfinished plant – must be vacated.
South Carolina Attorney General Alan Wilson sued the department on May 25 to force it to advance the MFFF, pairing it with the injunction motion seeking immediate action from Childs before DOE could issue a full order work stoppage. In the partial stoppage, Perry said the department would repurpose MFFF as a facility to produce nuclear warhead cores called plutonium pits.
The DOE legal team admitted in a Tuesday hearing that the full order would be issued around June 11, but said that date holds no weight because employees would still have 60 days on the job before they were terminated.
Childs disagreed.
“The Federal Defendants’ contention that there has not been a final agency action to terminate the MOX Facility is directly refuted by the evidence submitted by the Federal Defendants and the practical reality that the full stop work order that is planned for June 11, 2018 will shut down the MOX Facility,” Childs wrote in her order.
She sided with South Carolina on multiple other points as well, including the state’s argument that a full stop work order would cause environmental harm to South Carolina by forcing the state to house unwanted plutonium indefinitely.
Childs also challenged Perry’s certification that DOE is committed to removing plutonium from South Carolina. The department used its current mission of down-blending a separate tranche of plutonium at Savannah River as proof of its commitment to the state during Tuesday’s hearing.
But Childs wrote, “[n]one of the defense plutonium that the Federal Defendants claim is currently being processed in South Carolina for shipment to WIPP was intended to be disposed of by the MOX Facility. Accordingly, this fact is irrelevant to and provides no support for the Secretary’s commitment to remove plutonium from South Carolina that is intended to be disposed of in the MOX Facility.”
It is unclear if the department plans to challenge the ruling. Wilson, in a statement, called the decision “a victory for the people of South Carolina and the safety of all South Carolinians.” The NNSA said only that it is “reviewing the impacts of the court decision on our current and future enduring national security missions at the Savannah River Site.”
This is the latest chapter in the two parties’ longstanding battle over the MFFF. The state and federal governments inked a deal in 2003 that paved the way for construction of MFFF starting in 2007. Under the agreement, the federal agency was supposed to process, or remove, 1 ton of plutonium from the state before Jan. 31, 2016, or afterward pay $1 million a day, capped at $100 million annually.
None of that has happened.
Wilson has sued the federal government five times since 2014 to keep the MFFF going, and claim the financial penalties owed after DOE busted the 2016 plutonium-removal deadline. One of these lawsuits was dropped, while the other cases remain alive in U.S. District Court in South Carolina and the U.S. Court of Federal Claims.
