A federal appeals court’s October order to remove 1 metric ton of plutonium from South Carolina by Jan. 1, 2020, took effect this week, depriving the Department of Energy of some legal wiggle room to contest the directive.
The Fourth Circuit Court of Appeals in Richmond, Va., gave notice Tuesday that its October ruling was, as far as that court is concerned, final. That limits the agency’s judicial options for fighting the order to either escalation to the Supreme Court or seeking redress from the U.S. District Court judge who issued the original order nearly a year ago.
Before the mandate, the Department of Energy (DOE) could have sought a rehearing before the full 18-judge Fourth Circuit Court, rather than the three-judge panel that heard the case in late September.
In 2016, South Carolina sued DOE in U.S. District Court for South Carolina for failing to remove the metric ton of weapon-usable plutonium from the state by a legally binding deadline of Jan. 1, 2016.
In a progress report filed with the District Court last week, DOE said it was still on track to move that plutonium out of the Savannah River Site in Aiken, S.C., by Judge J. Michelle Childs’ 2020 deadline.
In May, DOE redesignated the to-be-removed ton, formerly surplus to defense needs, as “for defense-production use.” The cache of plutonium was in good enough condition, DOE said in last week’s progress report, to be sent to the Los Alamos National Laboratory in New Mexico to help begin production of fissile weapon cores called plutonium pits by early next decade.
As part of a 2000 arms control pact with Russia, DOE was supposed to turn 34 metric tons of surplus plutonium into commercial reactor fuel using the now-canceled, and still incomplete, Mixed Oxide Fuel Fabrication Facility Savannah River. The agency now plans to process the plutonium at Savannah River after 2027 and ship the resulting material for disposal at the agency’s Waste Isolation Pilot Plant near Carlsbad, N.M.
Shipping the ton of plutonium out of Savannah River by the District Court deadline will delay the start of this so-called “dilute-and-dispose” approach by three to six months, DOE has said. That is because packing and shipping plutonium from the site’s K-Area would tie up personnel and equipment that otherwise could support dilute-and-dispose, the department said in last week’s progress report to the District Court.
The two projects “cannot occur simultaneously,” a federal attorney representing DOE wrote.
Congress forbade the agency from using its 2019 appropriation to build dilute-and-dispose infrastructure, but lawmakers did approve about $25 million for design studies as part of the budget for the Office of Material Management and Minimization within DOE’s semiautonomous National Nuclear Security Administration.
The Energy Department had sought $59 million in dilute-and-dispose funding for 2019, including to begin procurement of glove boxes and for demolition of unneeded K-Area infrastructure.
In its 2019 budget request, DOE estimated dilute-and-dispose infrastructure would take until 2027 to build, at a cost of $200 million to $500 million. The plan involves modifying Savannah River’s building 105K to add glove boxes, active ventilation and an emergency diesel generator to the facility, according to a recent report by DOE’s Enterprise Assessments office. According to the report, the dilute-and-dispose project design is about 10 percent complete.
It would take until the late 2040s to get all 34 metric tons of plutonium out of Savannah River using that approach, according to an internal DOE document obtained this year by the Union of Concerned Scientists.
With dilute-and-dispose to replace it, the Energy Department wants to turn the Mixed Oxide Fuel Fabrication Facility into a nuclear warhead-core factory: a sister facility to the plant being built at the Los Alamos National Laboratory in New Mexico. The Energy Department wants to produce at least 80 plutonium “pits” per year by 2030.
Meanwhile, Nevada has sued to keep any Savannah River plutonium bound for Los Alamos out of the Silver State. Los Alamos does not currently have room to accept more plutonium, DOE has said, so any fissile material removed from Savannah River would have a layover at one or both of the Nevada National Security Site, which is about 100 miles northwest of Las Vegas, or the Pantex Plant in Amarillo, Texas.
