Morning Briefing - January 03, 2019
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January 03, 2019

Federal Court Denies South Carolina MOX Summary Judgment Request

By ExchangeMonitor

A federal judge last week denied South Carolina’s motion for summary judgment in a lawsuit demanding that the Department of Energy continue building the Mixed Oxide Fuel Fabrication Facility (MFFF) at the Savannah River Site.

Judge J. Michelle Childs, of U.S. District Court for South Carolina, wrote in her Dec. 28 order that she will not rule on the matter until the Fourth Circuit of the U.S. Court of Appeals decides whether to uphold her ruling to temporarily forbid DOE from terminating the project.

In a summary judgment request filed last June, the state asked Childs to take an additional step and permanently prevent the agency from shuttering the project.

It seems likely that future decisions from either court will have little impact on the project that was supposed to dispose of 34 metric tons of weapon-usable plutonium under a U.S.-Russian arms control agreement. The Energy Department last fall formally terminated the MFFF and layoffs are underway.

This was the latest in a series of lawsuits South Carolina Attorney General Alan Wilson has filed over the past five years to keep the federal government from shuttering the MOX project, to force DOE to remove 1 metric ton of plutonium from the state, and to recoup hundreds of millions of dollars in penalty money Wilson believes is owed to the state due to schedule delays on the second matter.

Under the terms of a state-federal agreement, DOE had until Jan. 1, 2016, to remove a ton of the material from South Carolina or reprocess the plutonium via the MOX project. The penalty for missing the deadline is $1 million per day, capping at $100 million annually.

In a lawsuit filed May 25, 2018, in U.S. District Court, the state sought to reverse a May 10 decision from Energy Secretary Rick Perry to terminate the project and repurpose the MFFF to produce plutonium cores for nuclear warheads. Childs issued a permanent injunction on June 7. The agency appealed the ruling a week later, and the Fourth Circuit on Oct. 9 granted a stay of the lower court’s decision.