Ruling in MOX case favors state but victory elusive

The ruling in the South Carolina lawsuit against the U.S. Department of Energy might not be as much of a victory as it first appears.

 

Judge J. Michelle Childs issued an order in the case over Savannah River Site’s Mixed Oxide Fuel fabrication facility Monday, telling the Energy Department it has to remove plutonium from the Palmetto State. Because of the National Environmental Policy Act, however, Childs denied the state’s request to have it removed “immediately.”

The lawsuit was filed in early 2016 after a series of missed deadlines at the MOX facility. Construction began on the project in 2007 and it was originally slated to be complete in 2014. When that deadline was missed, the timer started on enforcement actions set forth in other legislation.

After the 2014 deadline, the DOE was supposed to remove one metric ton of plutonium per year beyond the deadline. When that remained unfulfilled on January 1, 2016, a second penalty levied a $1 million daily fine against the federal entity, with a maximum $100 million fee per year.

In February, then Gov. Nikki Haley and S.C. Attorney General Alan Wilson filed a lawsuit to lay claim to the penalties and enforce removal of plutonium from the Palmetto State. Monday’s ruling is at least partially in favor of the state, but the judge’s denial of the immediate removal clause is a nod to the complexities of defense nuclear activities.

Under NEPA, an environmental assessment must be completed if the DOE plans to move the plutonium from SRS to another site. One major obstacle blocking the “immediate” removal of the material is that the DOE has nowhere to put it.

In an environmental assessment, the Energy Department would need to look at a number of potential options. Without a designated national repository for defense nuclear materials, options remain limited. Moving plutonium to other DOE sites around the nation would be met with fierce political and public opposition, according to SRS Watch Director Tom Clements.

“I don’t think the ruling accomplishes anything in getting plutonium removed from South Carolina. There is nowhere to take it, period,” he said.

Going through the environmental assessment process would take many months and could extend into years, including time periods for public comment and review. Security issues and the need to plan for shipping routes could also extend the process timeline.

Among the DOE’s arguments in the case was that the department was already in the process of removing plutonium from SRS through its dilute and dispose, or downblending, project. That process takes plutonium and grinds it into minuscule pieces, then mixes that with a much larger amount of inert materials. The goal is to disperse the plutonium particles so that they cannot be reclaimed.

The product is then placed into containers for eventual storage at the Waste Isolation Pilot Plant in New Mexico. The WIPP facility is not equipped for plutonium storage in any other fashion, and it was not immediately clear if the Department of Energy will pursue downblending as part of its compliance with the judge’s order. The DOE and the South Carolina Attorney General’s office declined to comment, citing ongoing legislation.

The judge’s order does affirm that the federal agency violated the law, but leaves uncertainty in the ability to enforce those statutes.

“There has never been any doubt that the federal government is responsible for removing nuclear waste from the Savannah River Site, and while the governor is pleased with today’s ruling, he believes it is imperative that a plan is set in motion to fulfill that responsibility to our state as soon as possible,” said Brian Symmes, spokesperson for Gov. Henry McMaster.

Without a current plan or legally binding timeline, it remains to be seen when that responsibility will be fulfilled. In late 2016, Childs dismissed the state’s claim to the $100 million in penalties without prejudice so the state could pursue that claim in the Court of Federal Claims, which has jurisdiction over monetary claims against the federal government.

Because the plutonium was still not removed by January 1 of this year, the state’s $1 million ticker started over. As of March 22, that tally stands at $81 million and will reach its $100 million limit April 10. The state has not publicly said whether it will pursue legal action to claim both years’ fees.

Reach Thomas Gardiner at (706) 823-3339 or thomas.gardiner@augustachronicle.com.

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