An increased risk of radioactive contamination combined with the flouting of federal environmental laws should have persuaded a federal judge to block the Department of Energy from sending weapon-usable plutonium to Nevada, the Silver State told an appeals court this week.
Nevada wants the Ninth Circuit Court of Appeals in California to overturn U.S. District Judge Miranda Du’s January refusal to grant a preliminary injunction that would block the National Nuclear Security Administration (NNSA) from shipping more weapon-usable plutonium to the Nevada National Security Site (NNSS).
The semiautonomous DOE agency sent 500 kilograms of such plutonium to the NNSS some time before November to comply with a 2017 order from a district judge in South Carolina. In that lawsuit, the court directed the NNSA to remove 1 metric ton of plutonium from the Savannah River Site in Aiken, S.C., by Jan. 1, 2020, because the agency missed a deadline to turn the material into commercial reactor fuel.
Nevada said the NNSA intentionally neglected to tell then-Gov. Brain Sandoval (R) or the state’s congressional delegation about the shipment even after Nov. 30, when the state sued to stop it. The state sought a preliminary injunction the same day, which Du eventually denied — not because the plutonium had already been shipped to NNSS, but on the legal grounds that the state would not suffer irreparable harm from such a shipment.
Citing NNSA filings in the District Court in South Carolina, Nevada argued in its Monday appeals brief that moving the plutonium to NNSS would expose workers there to “significant,” “unnecessary,” and “needless” radiation.
That evidence, lawyers for Nevada wrote, “on its own supports a finding of irreparable injury.” The state also maintains that the NNSA needed to conduct a new, lengthy environmental review before moving plutonium to Nevada from Savannah River.
The NNSA maintains that its reliance on old environmental reviews, updated by a supplement analysis published around August, was legal, and thorough enough to protect Nevadans from any hazard associated with the material now stored at NNSS’ Device Assembly Facility.
The NNSA had not filed a response to Nevada’s appellate brief at deadline Friday for Nuclear Security & Deterrence Monitor. The agency plans to ship the other half of the metric-ton of plutonium ordered out of Savannah River to the Pantex Plant in Amarillo, Texas.
Sometime in the mid-2020s, the agency will turn this material, once scheduled for permanent disposal, into fissile warhead cores called pits at the Los Alamos National Laboratory in New Mexico. Los Alamos currently has no room to store the plutonium leaving South Carolina, the NNSA has said.
Perry Pushes Back Against Nevada’s Claim of Deceit
Meanwhile, the messaging war over the clandestine plutonium shipment to NNSS continued this week in the pages of the Las Vegas Review Journal, where Secretary of Energy Rick Perry insisted that his agency gave Nevada officials all the notice the federal government could about the shipment.
The NNSA did not admit publicly until January that it had shipped the half metric ton of plutonium NNSS.
But Perry, in his letter to the Review Journal, said “Nevada officials were not blindsided at all” because the NNSA announced its plans to move plutonium to NNSS in the August supplement analysis.
Nevada’s congressional delegation, Gov. Steve Sisolak (D), and Sandoval all have said that environmental document, and a limited private dialogue about it with Department of Energy and NNSA officials prior to and after the document’s release, were all the notice the Silver State got about the shipment.
Perry, echoing language from a Department of Energy press release issued Jan. 31 after the agency’s bombshell admission, said his agency “was as transparent about this movement as operational security would permit.”
Nevada never argued that the NNSA could not ship plutonium to NNSS, only that the agency had failed to conduct a required environmental environmental analysis first.
Du in the U.S. District Court has yet to rule on that claim, and the lawsuit is on hold during Nevada’s appeal.
