The blockbuster lawsuit between the Department of Energy and the prime contractor for the unfinished Mixed Oxide Fuel Fabrication Facility (MFFF) will go to trial in April 2019, a federal judge ordered this week.
Judge Thomas Wheeler of the U.S. Court of Federal Claims handed down the order the week after DOE made official its preference to cancel the project and turn the unfinished plutonium-conversion plant into a factory for fissile warhead cores known as plutonium pits.
The trial will take place some time from April 1 to April 26, according Wheeler’s Tuesday order. The order also consolidated the six lawsuits MFFF prime CB&I AREVA MOX Services has filed since 2016 claiming DOE mismanagement of the contract. MOX Services seeks about a $200-million award in the case, including damages and contract fees the company says DOE illegally clawed back over the past two years.
The Energy Department awarded the MFFF prime contract to a MOX Services predecessor company in 1999. The facility was supposed to begin turning 34 metric tons of surplus weapon-ready plutonium into commercial nuclear reactor fuel by 2016, under an arms-control pact with Russia. By the most optimistic public estimates, the project is more than a decade behind schedule and $5 billion over budget.
MOX Services alleges DOE managed the contract in bad faith — for example, choking off funding ahead of anticipated work ramp-ups — and created the delays the agency has since cited as justification to replace the project with an alternative plutonium disposal method.
Energy Secretary Rick Perry said last week the alternative would cost about $20 billion, compared with $50 billion to finish the MFFF and treat the plutonium there. His department claims it acted within the bounds of the law after deciding, in 2015, to employ the dilute-and-dispose approach for the plutonium: chemically altering the plutonium at Los Alamos National Lab and Savannah River Site, mixing it with concrete-like grout at Savannah River, and burying the resulting mixture deep underground at the Waste Isolation Pilot Plant near Carlsbad, N.M.
The lawsuit is only one of the barriers to turning MFFF into a weapons factory. This week, the House Appropriations Committee approved a 2019 DOE budget that does not fund dilute-and-dispose, or provide the first tranche of the $4.6 billion the agency said it will cost to convert the MFFF for pit duty. Likewise, neither of these things were authorized in the 2019 National Defense Authorization Act the House Armed Services Committee approved last week.
Meanwhile, MOX Services and DOE were due in court Thursday for oral arguments over a portion of the $200 million the company seeks from its customer in the suit. MOX Services requested the expedited award of about $20 million in fees the contractor said DOE clawed back illegally in 2016. MOX Services said its contract with DOE forbade the agency from making any decision about a fee award until the facility was finished. The Energy Department says the deal permitted it to make a fee decision at the end of a contract option period that lapsed in 2016.
Wheeler had not yet ruled on the oral arguments at deadline for Nuclear Security & Deterrence Monitor. A transcript of the proceedings was unavailable this week.
