Calling the Department of Energy’s 2018 shipment of plutonium to Nevada a “nuclear incident” and a nuisance, the state is asking a federal judge to boot half a metric ton of the fissile material out of the Nevada National Security Site (NSS) and prohibit further shipments.
The draft amended complaint filed late last week is the latest change of legal tack in Nevada’s 2018 lawsuit, filed to stop DOE from shipping weapon-usable plutonium to NNSS from the Savannah River Site in Aiken, S.C. In January, the department acknowledged it had sent the half-metric ton of plutonium to the NNSS Device Assembly Facility well before Nevada sued.
That plutonium, by virtue of its presence in the state, now constitutes “loss of, damage to, and loss of use to Nevada’s property arising out of or resulting from radioactive and/or special nuclear material” under the 1957 Price-Anderson Nuclear Industries Indemnity Act, lawyers for Nevada wrote in a draft amended complaint filed in U.S. District Court for Nevada. The Price-Anderson Act gives federal courts jurisdiction over nuclear incidents: injuries to persons and property caused by some nuclear materials.
With plutonium now sitting at the secured Device Assembly Facility in the interior of the former Nevada Test Site is “damage and injury from the increased radiation emanating from NNSS is ongoing, continuing, and poses a continuing threat of future injury,” Nevada said in its motion. “The increased radiation is being released currently, will continue to be released, and Defendants’ operating conditions render it likely that additional radiation will be released in the event of an accident or intentional act.”
U.S. District Judge Miranda Du must still approve Nevada’s motion to file the amended complaint. Du had not ruled on the motion at deadline for Nuclear Security & Deterrence Monitor.
Citing the Price-Anderson act, and calling the plutonium stored at NNSS a “nuisance,” Nevada wants wants Du to order DOE’s semiautonomous National Nuclear Security Administration (NNSA) to remove the plutonium from the site, then bar the agency from transferring any more plutonium from South Carolina.
Legally, a nuisance is something that creates “a significant interference with the public health, the public safety, the public peace, the public comfort or the public convenience,” Nevada wrote in its brief.
The Energy Department moved the plutonium to Nevada from the Savannah River Site to comply with a 2017 court order in a separate lawsuit. That order required the agency to remove 1 metric ton of plutonium from South Carolina by Jan. 1, 2020. The agency said it had complied fully with that court order by August. The rest of the material is believed to have gone to the Pantex Plant in Texas.
Energy Secretary Rick Perry has told Nevada Gov. Steve Sisolak (D) and Nevada’s U.S. Senate delegation that DOE will remove the plutonium sent to NNSS by 2026. The NNSA plans to use the plutonium to make fissile weapon cores called pits for future intercontinental ballistic missile warheads.
