Even if Nevada succeeds in blocking a shipment of 1 metric ton of weapon-usable plutonium to a former nuclear explosive test site within its borders, the material could still leave South Carolina by a court-ordered deadline, the Silver State argued in federal court this week.
The filing represents Nevada’s attempt to muscle South Carolina out of a lawsuit against the Department of Energy.
A federal court legally evicted the ton of plutonium from South Carolina in December 2017, and DOE’s National Nuclear Security Administration (NNSA) plans to move the material to the Nevada National Security Site (NNSS) or the Pantex weapons assembly plant in Amarillo, Texas, by Jan. 1, 2020.
In a filing Wednesday, attorneys for Nevada told U.S. District Judge Miranda Du she could grant a state-requested injunction to stop the NNSA from moving the material to NNSS because the agency would still be free to send the material to Pantex.
It is a case of one lawsuit spilling into another. About two years ago, the U.S. District Court for South Carolina ordered the NNSA to start moving plutonium out of the Savannah River Site in Aiken, S.C., after the agency failed to convert the material into fuel for commercial reactors by 2014, as required by federal law. The first tranche, the one at issue in the Nevada case, has to be out of South Carolina in a little less than a year.
South Carolina wants to make sure the NNSA meets the deadline and appeared Jan. 4 in Du’s court in Nevada, where the Silver State sued the NNSA on Nov. 30 and simultaneously sought a preliminary injunction to temporarily stop plutonium from coming to Nevada. The state alleges the NNSA has not performed the environmental reviews needed to send plutonium to Nevada.
South Carolina complained such an injunction would prevent the DOE agency from shipping material from Savannah River, and asked Du to block Nevada from obtaining the injunction.
Nevada tried to poke a hole in that idea, saying in its Wednesday filing that “[t]o the contrary, Nevada’s Motion for Preliminary Injunction requests only that this Court enjoin Defendants from shipping the plutonium from South Carolina to Nevada.”
Nevada also said South Carolina had no right to intervene in the latest plutonium lawsuit, since the NNSA, if victorious in fending off an injunction by the District Court in Nevada, would secure the ability to move plutonium to Nevada.
Du ordered South Carolina to respond to Nevada’s filing by Friday; South Carolina had not done so by deadline for Nuclear Security & Deterrence Monitor.
In the suit and preliminary injunction request, Nevada claims the NNSA has not done the environmental due diligence required to move the plutonium. The semiautonomous DOE branch claims it did, and that it published its findings online in a July 2018 document called a supplement analysis.
A hearing on the injunction is set for Jan. 17.
In summer 2018, the NNSA announced it would move the plutonium at issue to the Los Alamos National Laboratory by way of the the former Nevada Test Site about 100 miles northwest of Las Vegas. The NNSA refuses to say when it will begin shipments, but filings in the District Court for South Carolina show they could start by mid-March. Nevada, according to court papers filed in December, fears shipments could start as soon as the end of January.
“NNSA is engaged in moving the 1 [metric ton] of plutonium out of the state [South Carolina],” an agency spokesperson said by email Jan. 4. “To protect operational security, we are unable to share specific information regarding shipments.”
NNSA is banking on using the Nevada National Security Site’s Device Assembly to store plutonium and was busy last year clearing out space in the facility, according to an annual performance evaluation released Friday for former lab contractor Los Alamos National Security.
The contractor, which left the site Nov. 1 and turned the keys over to Triad National Security, was tasked with “consolidation of the material inventory at the NNSS Device Assembly Facility (DAF) to create space for high priority NNSA mission activities” in 2018, according to the NNSA-written performance evaluation.
The NNSA was supposed to convert the Savannah River plutonium into commercial reactor fuel using the now-canceled Mixed Oxide Fuel Fabrication Facility (MFFF).
The MFFF ran billions of dollars over budget and was years behind schedule when the NNSA in October finally canceled MOX Services’ prime contract to build the plant. MOX Services is suing the agency in U.S. Court of Federal Claims for mismanaging the construction, but that has not stopped the company from hemorrhaging jobs after the NNSA pulled the plug.
The project had employed some 1,500 people. Of those, some 600 were let go this week in the first of three planned rounds of layoffs. The next wave is scheduled for Feb. 4, when nearly 440 people are set to lose their jobs. Another 100-plus will leave by March 4, according to a notice filed this week with the quasi-official SC Works nonprofit.
Also this week, the U.S. Fourth Circuit Court of Appeals permanently lifted an injunction against closing the MFFF: an injunction South Carolina won in yet another lawsuit in U.S. District Court in that state.With the MFFF contract terminated, the move amounts to a legal formality, in which the appeals court cut down the state’s argument that cancellation amounted to creating an illegal, permanent plutonium repository in the state.
South Carolina had alleged that the NNSA’s decision to cancel the MFFF would permanently strand plutonium in the state. For that to happen, the state argued, the federal agency was legally required to undertake a potentially years-long environmental review — something it has not done.
But the appeals judges said the NNSA already had an environmental review that covered plutonium storage at Savannah River through 2046, and that the agency has identified an alternative disposal method: chemically weakening it with proposed on-site facilities, blending it with concrete-like material called stardust, and burying it deep underground at DOE’s Waste Isolation Pilot Plant near Carlsbad, N.M.
Should that so-called dilute-and-dispose plan fail, the NNSA has about 30 years to come up with a backup to that backup, the appeals court wrote.
South Carolina sued in May 2018 in U.S. District Court and got the now-vacated injunction in June. The state said the NNSA’s plan to close the plant ran afoul of federal environmental law. That suit, which aims to keep MFFF alive and prevent long-term storage of plutonium at Savannah River, now will continue; the parties had not filed any new documents in the original case at deadline Friday.
