The Department of Energy’s Mixed Oxide Fuel Fabrication Facility (MFFF) will enjoy judicial protection from the federal ax for essentially the rest of the government’s 2018 fiscal year after an appeals court last week decided not to immediately lift a lower court’s ban on closing the plant.
South Carolina sued in May to prevent DOE from shuttering the over-budget plutonium disposal project at the Savannah River Site. On June 7 it secured an injunction from a U.S. District Court judge in South Carolina to keep the facility open at least for the duration of the lawsuit.
The Energy Department appealed the decision June 15, asking the Fourth Circuit Court of Appeals to stay the injunction until after the higher court ruled on the appeal. The Fourth Circuit declined to do so June 29, when it scheduled oral arguments on the appeal for Sept. 25-28: days before the Sept. 30 end of the fiscal year.
If DOE prevails in those arguments, the appeals court could lift the District Court order that protects the facility. The agency also asked the District Court to stay the injunction, but Judge J. Michelle Childs denied that request the week before the appeals court issued its ruling.
Meanwhile, the state of South Carolina last week asked the District Court to block the agency from closing the MFFF until the government conducts an environmental review of its proposed alternative. The state is pushing for a ruling on that before the end of the calendar year, but the lower court had not ordered further briefings on the request at deadline Friday for Nuclear Security & Deterrence Monitor.
Citing runaway costs and tight budgets, DOE has sought for the past three years to close the MFFF, which is being built by CB&I AREVA MOX Services to turn surplus weapon-usable plutonium into fuel for commercial nuclear power plants. In papers filed with the appeals court two weeks ago, the agency claimed it costs more than $1 million a day to continue construction.
The department wants to turn the MFFF into a factory for fissile nuclear-warhead cores called plutonium pits and dispose of the surplus plutonium by burying it at the agency’s deep underground Waste Isolation Pilot Plant near Carlsbad, N.M.
Congress has generally not supported DOE’s request to close MFFF. The Senate’s 2019 National Defense Authorization Act, passed two weeks ago and awaiting reconciliation with the House’s version, would block DOE from closing down construction until at least 2020.
Plant contractor CB&I AREVA MOX Services is also suing DOE in federal court, seeking some $200 million in fees and damages. The contractor alleges DOE’s own mismanagement of the project caused the delays the agency says forced it to cancel the project. The Energy Department estimates the facility cannot be finished until 2048 DOE made the decision official on May 10, when the agency exercised authority Congress granted it as part of the 2018 National Defense Appropriations Act
The MFFF was supposed to be completed by 2016 and cost about $5 billion. MOX Services now estimates it could be done by 2029 for about $10 billion.and will cost around $17 billion.
The debate over the MFFF has made for strange bedfellows, with New Mexico Democrats lining up in the Senate with South Carolina Republicans to defend the facility, and the Department of Energy occasionally winning support for its cancellation policy from watchdog groups.
On July 2, the Project on Government oversight published a letter to the leadership of the House and Senate Armed Services committees, in which the group said the MFFF “has clearly failed,” and that the NNSA should be allowed to proceed with its proposal to scrap the plant and bury surplus U.S. plutonium in New Mexico.
