Federal judges could soon issue rulings in a pair of appeals cases over the future of plutonium and plutonium operations in the state, following oral arguments in a federal appeals court this week.
Arguments in both cases ― separate lawsuits the state brought against the federal agency in 2016 and 2018 ― happened Thursday in the U.S. Fourth Circuit Court of Appeals in Richmond, Va.
The same panel of three judges heard both arguments, but had not issued rulings in either case at deadline Friday for Nuclear Security & Deterrence Monitor.
Both lawsuits center on the Mixed Oxide Fuel Fabrication Facility (MFFF) under construction at DOE’s Savannah River Site in Aiken, S.C., and several tons of weapon-usable plutonium brought into the state between 2002 and 2014. The material, declared excess to defense needs in the mid-1990s after the end of the Cold War, was originally to be turned into fuel for commercial nuclear reactors at the MFFF.
South Carolina accepted the plutonium mission only grudgingly. A 2003 deal enshrined in federal law required DOE to remove or process 1 metric ton of that material by Jan. 1, 2016, but the deadline passed without that happening. The state then initiated the agreed-upon $1 million per day fine against the federal government and sued when payment was not made.
In December, a lower court ruled DOE had to move 1 metric ton of plutonium out of the state by at least 2020. The Energy Department appealed the decision, setting the stage for Thursday’s arguments before a panel of judges. However, the agency earlier this year said it would attempt to comply with a lower court’s order by moving 1 metric ton of plutonium out of Savannah River to the Los Alamos National Laboratory in New Mexico and the Nevada National Security Site. The plutonium would eventually be used to help Los Alamos produce new plutonium cores for nuclear warheads.
The Energy Department is on the hook to produce 80 oplutonium “pits” annually by 2030, and wants to convert the MFFF to make 50 of those. In the 2018 case, South Carolina sued DOE ― again in U.S. District Court in South Carolina ― to prevent the agency from shutting down MFFF construction and beginning the process of converting the planned plutonium disposal facility into a factory for plutonium pits.
In June, the court handed down an injunction temporarily blocking DOE from stopping construction of MFFF. The agency immediately appealed the decision and will now try to convince appeals judges that the injunction should be lifted.
