The South Carolina attorney general has revealed most of the argument he will use to convince a federal appeals judge that a lower court was right to stop the Department of Energy from canceling construction of an over-budget plutonium disposal project at the Savannah River Site.
In an appellee brief filed Aug. 10 with the U.S. Fourth Circuit Court of Appeals, South Carolina Attorney General Alan Wilson defended a U.S. District Court’s ruling in June requiring DOE to proceed with the Mixed Oxide Fuel Fabrication Facility (MFFF), which the agency wants to turn into a factory to produce plutonium nuclear-weapon cores.
Refuting an earlier DOE brief filed with the appellate court, Wilson said the District Court had all the information it needed to order an injunction preventing the agency from halting construction of MFFF, which CB&I AREVA MOX Services is building under a contract with the agency’s semiautonomous National Nuclear Security Administration.
Wilson also maintained that DOE violated U.S. law by announcing plans to close the MFFF before evaluating the environmental effects of an alternative plutonium-disposal strategy. The top South Carolina law-enforcement officer noted DOE was not freed from its obligation to conduct the environmental review simply because it exercised an option, provided to the agency last year by Congress in the 2018 National Defense Authorization Act, to opt out of construction.
In a footnote, Wilson likened that opt-out to using “magic words” that allowed DOE to cancel the project simply by promising Congress the agency had some other way of removing weapon-usable plutonium from South Carolina.
The MFFF was supposed to be done in 2016 and cost about $5 billion. MOX Services now estimates the plant will cost $10 billion to complete by 2029. The Energy Department estimates it will cost $17 billion and take until 2048, and so wants to instead dilute the plutonium elsewhere at Savannah River, then bury the material deep underground at DOE’s Waste Isolation Pilot Plant near Carlsbad, N.M.
The parties are scheduled to present oral arguments in the appeals court on Sept. 27.
