In a pound-the-table brief filed this week, Nevada asked a federal judge to hear oral arguments in an ongoing lawsuit to remove 500 kilograms of weapon-usable plutonium from the state.
The Department of Energy’s National Nuclear Security Administration shipped the material to the Nevada National Security Site in 2018 to comply with a court order in a separate lawsuit requiring removal of 1 metric ton of plutonium from the Savannah River Site in Aiken, S.C. Nevada sued in November 2018 to stop the shipment, only to have the NNSA admit in January the plutonium had already reached its destination.
Nevada has since amended the lawsuit to demand the plutonium’s removal from the former Nevada Test Site’s Device Assembly Facility, making the legal argument that the material constitutes a nuisance, and that its shipment violated federal environmental law.
Escalating its rhetoric in a brief filed Monday with the U.S. District Court for Nevada, the state called DOE’s 2018 actions a “secret plutonium smuggling operation,” and refuted the agency’s calls to dismiss the case.
The Department of Energy, which in 2018 released a supplement analysis detailing the expected environmental impacts of the cross-country plutonium shipment, has denied it violated federal environmental law. The agency also says the legal nuisance standard Nevada cited does not apply in the case.
Nevada, in its response brief this week, countered that nuisance claims do apply to the case, that DOE has not provided enough details about the plutonium’s storage to rule out a public nuisance in the form of increased radiation exposure, and that DOE violated environmental law by moving the plutonium through the state without evaluating the potential effects thoroughly enough.
Judge Miranda Du had not set a date for oral arguments at deadline Friday for Nuclear Security & Deterrence Monitor. The plutonium shipped to the Nevada National Security Site was once part of a 34 metric ton tranche DOE planned to convert into fuel for civilian power plants using the now-canceled Mixed Oxide Fuel Fabrication Facility at Savannah River.
The remaining half-metric-ton is believed to have been shipped from Savannah River to the Pantex Plant in Texas.
The plutonium in Nevada will be sent starting in 2021 to the Los Alamos National Laboratory in New Mexico, where it will be used to make pits, fissile nuclear-weapon cores, for future U.S. warheads.
The NNSA says it will still dispose of 34 metric tons of weapon-usable plutonium at Savannah River, despite the diversion of some of this material to Nevada.
Meanwhile this week, DOE continued to protest that it cannot pay South Carolina $200 million in fines for leaving plutonium in that state beyond a federal deadline for removal.
In the Fourth Circuit Court of Appeals this week, the federal agency reiterated its argument that it has no appropriation from Congress to pay the fines levied by South Carolina. The case, a lawsuit filed by South Carolina in 2016, is on appeal because a District Court judge already bought DOE’s line of reasoning about the appropriation.
The plutonium at issue in the suit is part of a 34 metric ton tranche that was supposed to be converted into commercial reactor fuel at Savannah River in the now-canceled Mixed Oxide Fuel Fabrication Facility, or removed from South Carolina beginning in 2016, under federal law.
In yet another lawsuit, DOE was forced to remove 1 metric ton of this plutonium from Savannah River, leading to the shipment Nevada has contested.
The law requiring the plutonium’s removal starting in 2016 also requires that DOE pay up to $100 million in fines for each year that it does ship any plutonium out. However, South Carolina has so far been unable to persuade a judge that DOE can pay the fine unless Congress appropriates money expressly for that purpose.
