The South Carolina Attorney General’s Office on Tuesday will ask a federal judge to issue a preliminary injunction preventing the Department of Energy from stopping construction of its plutonium conversion plant at the Savannah River Site.
The state filed a preliminary injunction request and full lawsuit on May 25 in U.S. District Court with the aim of saving the Mixed Oxide Fuel Fabrication Facility (MFFF). Arguments had been scheduled for today, but was delayed after DOE successfully argued there was no need for an expedited hearing on the future of the facility near Aiken, S.C.
However, District Court Judge J. Michelle Childs has granted the state’s request for expedited hearings that South Carolina says are necessary to prevent DOE from issuing a full stop work order at the MOX project.
The Energy Department has sought for years to shut down the over-budget, behind-schedule MOX project, on which it has already spent $5 billion. It says there is a cheaper and faster way to carry out the plant’s mission of disposing of 34 metric tons of surplus plutonium: downblending it and burying the resulting material at the Waste Isolation Pilot Plant in New Mexico. Congress, though, has continued to fund construction of the MFFF.
Energy Secretary Rick Perry on May 10 formally declared DOE’s long-anticipated plan to convert the facility into a production site for plutonium nuclear-warhead cores, or pits. Perry also issued a partial work stoppage at the MOX plant, which freezes additional hiring and prevents the start of any new construction.
The state on May 25 sued Perry; DOE; the agency’s semiautonomous National Nuclear Security Administration, which directly oversees the MOX project; and NNSA Administration Lisa Gordon-Hagerty. In the complaint, South Carolina Attorney General Alan Wilson said the state suspects Perry will issue a full work stoppage on or around June 11, making his request for an injunction hearing urgent.
Childs seemed to initially agree, but was persuaded to delay the hearing by DOE’s motion for reconsideration on Wednesday. The department said it needs more time to address the state case. It noted that even if it issues a full stop work order on June 11, it would not take effect for another 60 days, per the agreement with its construction contractor for the MFFF, CB&I AREVA MOX Services.
The department has until Monday to file any opposition to the new date. Childs’ order does not include an opportunity for South Carolina to file opposition.
In the overall suit, the state is asking Childs to order DOE to continue building the MFFF, prevent the agency from stopping work in the future, and require the federal agency to pay attorney fees and associated costs.
This is the latest chapter in the two parties’ longstanding battle over MOX. South Carolina and DOE inked a deal in 2003 that paved the way for construction of the 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 pay $1 million a day, capped at $100 million annually. None of that has happened.
South Carolina argues in its 42-page lawsuit that the Energy Department failed to followed protocol laid out in the Atomic Energy Defense Provisions, which state the governor must directly be contacted by the secretary of energy before a decision regarding the MOX plant is made.
The attorney general added that DOE is also violating the National Environmental Policy Act (NEPA), which states an environmental impact statement must be submitted “when a major federal action is proposed that may significantly affect the quality of the environment.” The environment will be greatly impacted by this decision, he wrote, because plutonium will be stored at SRS without a pathway out of South Carolina. “DOE has recognized on numerous occasions that the storage of plutonium has a significant environmental impact that requires the proper analysis under NEPA,” according to Wilson.
The preliminary injunction hits many of the same concerns, saying the DOE decision would also damage the local economy. “Once this full stop work order is issued, hundreds of current SRS employees — who pay taxes in and many of whom are citizens of South Carolina — will lose their jobs,” it says. “This would be devastating for the individual employees and their families and the local communities and result in an economic loss for the State.”
The Energy Department wrote in its reconsideration request that it will respond to all of South Carolina’s claims in the near future. Still, the agency did denounce the claims of irreparable harm in the injunction request, claiming an expedited schedule would have no impact on construction or employment at MOX, or the local economy.
Wilson has sued the federal government five times since 2014 to keep the MOX program going and claim funds owed after DOE busted the 2016 plutonium-removal deadline. One lawsuit has been dropped, while the other cases remain alive in U.S. District Court in South Carolina and the U.S. Court of Federal Claims.
