Days after asking as much in oral arguments, the Department of Energy this week again asked a federal appeals court to let it shut down the Mixed Oxide Fuel Fabrication Facility under construction at the Savannah River Site in Aiken, S.C.
In early June, as part of a lawsuit filed by the state of South Carolina to keep the project alive, a U.S. District Court judge issued an injunction blocking DOE from canceling the over budget, behind-schedule plutonium-disposal plant while the lawsuit plays out in court.
The Department of Energy immediately appealed the decision to the U.S. Fourth Circuit Court of Appeals, grinding the lawsuit to a halt while the agency and the state made their cases. That court rejected DOE’s request that it lift the lower-court injunction during the appeals process.
On Monday, just a weekend after some 40 minutes of oral arguments before three appellate judges from the Fourth Circuit in Richmond, Va., DOE prodded the court to quickly reconsider its June decision to leave the injunction in place.
“For the reasons discussed in our briefs and at argument, we respectfully submit that the State has not met its burden of establishing entitlement to the preliminary injunction,” attorneys for the department said in Monday’s renewed motion for a stay “If this Court agrees, it would be appropriate to issue a stay to prevent the unwarranted expenditure of millions of additional dollars in taxpayer funds.”
In its arguments, the agency said South Carolina had no right to sue DOE in District Court.
South Carolina, in a Wednesday response to DOE’s request for a stay, said the injunction should remain in place, because the agency will close MFFF the moment it is legally able, depriving South Carolina of any way to litigate its claim that the facility must remain open, for now.
The Mixed Oxide Fuel Fabrication Facility (MFFF) was designed to turn 34 metric tons of surplus weapon-usable plutonium into commercial reactor fuel. The Energy Department wants to cancel the plant and instead dilute the plutonium at proposed Savannah River Site facilities, then bury it deep underground in New Mexico at the agency’s Waste Isolation Pilot Plant. The MFFF would then be turned into a factory to annually produce 50 fissile weapon cores called plutonium pits by 2030.
The Fourth Circuit had not issued a ruling on the injunction at deadline Friday for Nuclear Security & Deterrence Monitor.
Same Facility, Different Lawsuit
DOE and its MFFF prime contractor, MOX Services, each blame the other for delays that have sidelined the plant until at least 2029 and added at least $5 billion to its construction price tag, according to the contractor’s own assessment. The agency and MOX Services are embroiled in their own lawsuit, which the company filed in 2016 to stop the agency from cancelling construction of the plant.
The case, which includes multiple lawsuits rolled up into the master suit, is set to go to trail in April. Meanwhile, the parties are inching toward a settlement over a relatively small amount of disputed costs related to MOX Services employee wages.
In a Sept. 26 order, U.S. District Judge Thomas Wheeler said he would stay proceedings in the portion of the lawsuit concerning $1 million in wage-related withholdings until Oct. 9 “to allow for finalization of the settlement process.”
In a June 27 complaint since consolidated into the 2016 suit, MOX Services alleged DOE arbitrarily levied a financial penalty because the company gave raises to some 55 employees after one of its subcontractors and owners, CB&I, acquired another subcontractor and owner, Shaw, in 2013.
MOX Services said CB&I — which was acquired by McDermott International this year — gave the raises as part of a broader effort that among other things sought to realign the salaries and job titles of former Shaw employees with comparable CB&I personnel, according to the complaint. DOE said CB&I did not document any justification for those raises and, around 2017, started withholding a portion of the money owed to the company under the MFFF prime contract.
CB&I said it had turned all the documentation it had on the raises over to DOE, but Lance Nyman, the agency’s contracting official for MFFF, said those documents did not justify the pay increases.
