South Carolina has asked the U.S. Supreme Court to review a lower court’s 2018 decision to let the Department of Energy close a proposed plutonium disposal plant in the western part of the state, according to papers filed recently with the highest court in the land.
After years of political and legal wrangling, DOE’s National Nuclear Security Administration (NNSA) in October canceled MOX Services’ prime contract to build the Mixed Oxide Fuel Fabrication Facility (MFFF) at the Savannah River Site in Aiken, S.C. By that time, it had spent $5 billion on the project.
The cancellation followed a legally required certification by DOE to Congress that there is a cheaper means of getting rid of the 34 metric tons of surplus, weapon-usable plutonium that the facility was supposed to convert into fuel for commercial nuclear reactors.
South Carolina, in a June 7 petition to the Supreme Court, repeated its claim that the NNSA did not actually follow the law in certifying to Congress that the agency could close down the MFFF and eliminate the surplus plutonium at a lower cost to taxpayers using a proposed method called dilute-and-dispose.
Also, according to attorneys for the state, an appeals court was wrong to rule that South Carolina had no standing to sue the agency. The NNSA’s unlawful certification to Congress provides that standing, as does South Carolina’s ownership of roads and land near the Savannah River Site, the June 7 petition says.
South Carolina filed suit with the U.S. District Court in May 2018 to stop the project from being shut down, alleging that by closing the plant the NNSA was effectively creating a permanent plutonium storage facility at a site that had not been properly vetted under federal environmental law.
In that lawsuit, South Carolina also argued that DOE’s certification of dilute-and-dispose was void because it did not consider technical and legal barriers to that program: chiefly, that the “dispose” portion of the program might require a change in federal law to allow the department to bury surplus plutonium deep underground at the Waste Isolation Pilot Plant near Carlsbad, N.M.
The District Court agreed with the state and in June 2018 temporarily blocked NNSA from halting the project. In October, however, the U.S. Fourth Circuit Court of Appeals reversed that ruling and cleared the way for closure of the MFFF.
The appeals court said the NNSA’s environmental analysis covered plutonium storage in South Carolina into 2046, and that the agency expected dilute-and-dispose to remove all the otherwise MFFF-bound plutonium from Savannah River by roughly that time.
The Fourth Circuit also cited a federal law that requires the NNSA to either process the surplus plutonium at Savannah River or remove it from the state. South Carolina already convinced the District Court, in a separate lawsuit, to enforce that provision and make the NNSA remove 1 metric ton of plutonium from Savannah River by Jan. 1, 2020. The agency subsequently sent half that metric ton to Nevada and plans to send the remaining half-ton to Texas, if it has not already.
The same law could force the NNSA remove even more unprocessed plutonium from the state by Jan. 1, 2020, the appeals court said, so South Carolina does not necessarily need the MFFF to prevent its territory from becoming a de facto plutonium repository.
The Supreme Court does not have to hear the case, and had not decided whether to do so at deadline Friday for Nuclear Security & Deterrence Monitor. The independent branch of the federal government hears only about 2% of the cases submitted each year, according to its website.
There are about 10 metric tons of weapons-grade plutonium at Savannah River now, the state said in its petition to the Supreme Court.
