Nevada Again Presses to Search for Evidence of DOE Corner Cutting in Plutonium Shipment

Nevada is pressing a federal judge for permission to resume a search for evidence that the U.S. Department of Energy skirted federal environmental law last year in shipping half a metric ton of weapon-usable plutonium to the Nevada National Security Site (NNSS).

On Oct. 3, U.S. District Judge Miranda Du reinstated, but did not rule on, a Nevada countermotion in its lawsuit against the plutonium shipment. The motion seeks authorization to conduct discovery: essentially, a request to let Nevada dig into DOE records for evidence that the agency, in the words of the state’s original discovery motion from April, “did not conduct a legitimate [National Environmental Polict Act] analysis before shipping” plutonium at some point last year.

Nevada sued on Nov. 30 to stop the plutonium shipment, only to learn in January, in a court filing from DOE’s semiautonomous National Nuclear Security Administration (NNSA), that the material had already arrived at the NNSS by the time the state sued last year.

Nevada is particularly interested in how DOE rapidly justified the decision to ship the plutonium to Nevada from South Carolina, given that the department previously said it was “impossible” to legally complete such a shipment as quickly as it eventually was. In its original discovery motion, the state said this alleged incongruity in DOE’s reasoning alone entitles Nevada to sift through any federal records — except those the federal agency is legally entitled to withhold — about the decision to ship the plutonium. 

The Energy Department shipped plutonium to Naveda after a federal judge in a separate lawsuit, filed in U.S. District Court for South Carolina, ordered the agency to get 1 metric ton of weapon usable plutonium out of that state by Jan. 1, 2020. The federal agency said this summer it complied with that order, though it did not confirm that the half-ton of plutonium not sent to Nevada was shipped to the Pantex Plant in Amarillo, Texas, as previously planned.

The Energy Department has argued that Nevada’s search for evidence about the plutonium shipment is limited to the already-published administrative record of the decision.

Nevada wants to amend its complaint in the lawsuit to add nuisance and nuclear-incident claims to the case. Those would not be subject to the same discovery limitations as the state’s initial environmental claims. The amended complaint also would ask Du to force DOE to remove the plutonium from the state.

Du had not ruled on Nevada’s motion to amend its complaint at deadline Friday.