State and federal lawyers are dotting “i’s” and crossing “t’s” on a settlement that would end the lawsuit over the National Nuclear Security Administration’s (NNSA) 2018 shipment of weapon-usable plutonium to Nevada.
In an order posted on May 29, Judge Miranda Du of U.S. District Court for Nevada gave the parties until June 29 to tweak the settlement language into final form. The previous day, lawyers jointly asked Du for permission to continue the settlement negotiation, and keep other action in the case on hold.
The request for another stay in the case hit the courts right after tensions between Nevada and the federal government flared up again, in the wake of a Washington Post report that President Donald Trump was considering conducting a nuclear explosive test. The former Nevada Test Site was for decades the home to atmospheric and underground explosive tests of nuclear weapons.
“The parties are currently working diligently to finalize high level government approvals and obtain signatures,” reads the May 28 joint request for a second stay. “Any order or decision issuing from the Court has the potential to disrupt current negotiations and jeopardize the amicable resolution to the ongoing dispute.”
Nevada lawyers and the federal attorney representing the NNSA started settlement talks in mid-March.
Sometime before November 2018, the semiautonomous Department of Energy agency shipped half a metric ton of weapon-usable plutonium to the Nevada National Security Site’s Device Assembly Facility from the Savannah River Site in Aiken, S.C. The move was required for the NNSA to comply with a 2017 order in a separate federal lawsuit brought by South Carolina, which wants the plutonium removed from its own borders. Nevada officials, unaware the plutonium had already arrived, filed suit in November 2018 to stop the shipment to the former test site. The state later amended its complaint to demand removal of the plutonium, which the state said constituted a nuisance under common law.
By 2026, the NNSA plans to send the plutonium now stored at the Device Assembly Facility to the Los Alamos National Laboratory in New Mexico, where the agency will use the material to build pits — fissile nuclear-weapon cores — suitable for the future W87-1 warheads being designed for Ground-Based Strategic Deterrent intercontinental ballistic missiles.
Those planned silo-based missiles will replace the Air Force’s aging Minuteman III missiles as the land-based leg of the U.S. nuclear triad.
Nevada has claimed the NNSA cannot legally ship plutonium through the state without performing a detailed environmental review. The federal agency has said it already did all the environmental review the law requires for such shipments. It has not said whether it might move more plutonium to the Device Assembly Facility from South Carolina after 2026.
Federal law requires the NNSA to remove the material from the state, by one means or another, by 2022. The NNSA says it will start shipping the material out of the Savannah River Site en masse beginning in 2028.
The plutonium at issue for Savannah River is part of a 34-metric-ton tranche that was slated for permanent disposal in the now-canceled Mixed Oxide Fuel Fabrication Facility at Savannah River. About 10 metric tons of that cache made it to Savannah River before shipments ceased in 2014. The rest is stored at other sites, in various forms, including at the Pantex Plant in Amarillo, Texas.
The NNSA intends to downblend all the surplus plutonium via downblending and mixing it with a classified binder as part of the Surplus Plutonium Disposition Program.
