A ruling issued Tuesday in South Carolina’s lawsuit against the U.S. Department of Energy over the beleaguered mixed o fuel fabrication facility could open a plutonium pathway out of the Palmetto State – but could add legal and political complications for the federal agency.
The lawsuit was filed by then-Gov. Nikki Haley in February 2015 after a series of missed deadlines in construction of the MOX facility at Savannah River Site near Aiken.
The ruling denies a motion from the DOE, keeping intact the state’s claim to have the department remove one metric ton of plutonium.
According to legislation, the Energy Department was required to remove at least one metric ton of plutonium from the state by 2016 and, by 2022, remove an amount equal to that taken into SRS between 2002 and 2022.
The MOX project is a product of an international nuclear nonproliferation treaty between the U.S. and Russia called the Plutonium Management and Disposition Agreement.
Under the agreement, each nation would demilitarize 34 metric tons of plutonium so that it could never again be weaponized. The cumulative 68 metric tons would be enough to create about 17,000 warheads.
In 2000, the U.S. agreed to use the mixed-oxide fuel option, and South Carolina’s SRS was chosen for construction, which began in 2004.
The original completion deadline for MOX was set for 2014, and Congress passed legislation aimed at keeping its progress on time, including penalties for botched deadlines. According to court records, that legislation required the DOE to remove one metric ton of plutonium from South Carolina by Jan. 1, 2016, if the production deadline in 2014 was missed.
When no plutonium had been removed in early 2016, a daily monetary penalty of $1 million was tallied by the state. Those fines had a maximum of $100 million a year. Haley’s lawsuit sought to enforce both the removal of plutonium and the assessment of those fees.
The claim to penalties was dismissed last year without prejudice, allowing the state to pursue its claim in the Court of Federal Claims.
Haley repeatedly told DOE that South Carolina would not become a “nuclear dumping ground.” Current Gov. Henry McMaster has echoed those words, and they both called for a plutonium pathway out of the state.
Tuesday’s ruling keeps the removal action alive in the case, meaning there could eventually be a court-ordered process to find a new home for old plutonium. There is no national repository for defense nuclear materials, however, and neither the court nor the DOE has clarified where the material could go.
“Bottom line, there is no place for it to go,” said Tom Clements, the director of SRS Watch.
Clements said transporting the plutonium would require the DOE to do an environmental assessment to look at its options, including a potential “no action” option. He said that other facilities aren’t set up to the specifications of the SRS plutonium and that forcing nuclear material from a site in one state onto another could create extensive legal and political problems.
The state sees the order as favorable. In an email, the state Attorney General’s Office said, “The Federal District Court ruled in favor of the State today in the State’s case to enforce the Federal Government’s obligations under Federal law to South Carolina regarding the disposition and removal of plutonium from the State. The State will continue to pursue this case to ensure the Federal Government fully complies with this obligation and all other commitments to the State.”
The National Nuclear Security Administration, the DOE’s agency responsible for MOX, said it could not comment because of continuing litigation.
McMaster spokesman Brian Symmes said, “Gov. McMaster will continue to advocate for the federal government to fulfill its commitment to South Carolina, and will pursue all options as we fight to make sure South Carolina doesn’t become a dumping ground for the world’s nuclear waste.”
Earlier this week, the judge issued a revised scheduling order, seating both sides at the negotiating table. The order said, “The State and Federal Defendants shall engage in good faith settlement discussions, which shall be concluded by July 31, 2017.”
The order also opens both parties to mediation should they agree it would be beneficial for discussions. If a settlement is not reached by July 31, a status conference will be scheduled by the court to determine the legal pathway for the nuclear lawsuit.
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