Staff Reports
NS&D Monitor
1/29/2016

South Carolina Attorney General Alan Wilson is preparing to take legal action against the Department of Energy for unkept multimillion-dollar promises made to the state for disposal of nuclear weapon-usable plutonium now stored at the Savannah River Site (SRS). Under a 2003 agreement with the state, DOE was supposed to process at least 1 metric ton of the plutonium by Jan. 1, 2016. If the department failed to do so, the agreement gave the federal agency the option to remove at least 1 ton of plutonium from SRS to avoid paying fines of $1 million a day beginning Jan. 1.

The Energy Department did not complete either task, which is why Gov. Nikki Haley made a formal request Tuesday for Wilson’s office to initiate litigation on behalf of the state to enforce penalties owed to South Carolina and to prevent additional plutonium from entering the state. "As you and I have discussed, South Carolina will not stand by while DOE continues – in violation of federal law – to ignore its commitment to the people of South Carolina," Haley wrote to Wilson. On Wednesday, Wilson’s office said it is "finalizing the best possible course of action, but will be taking action."

The tool for getting rid of the plutonium is intended to be the Savannah River Site’s Mixed Oxide Fuel Fabrication Facility (MFFF). The facility is a key part of the nation’s effort to convert 34 metric tons of weapon-usable plutonium into nuclear reactor fuel. Russia is also expected to dispose of 34 metric tons of the material to meet a 2000 agreement with the U.S. The MOX program has experienced cost overruns and delays, including a June projection from Energy Secretary Ernest Moniz that MOX will cost $1 billion a year to make sufficient progress. Moniz said he doesn’t believe Congress will provide that heightened amount of money after funding MOX at about $345 million per year the last several years.

Queried about Haley’s legal effort, the Department of Energy this week said it would not comment on potential litigation.

Members of South Carolina’s congressional delegation have applauded Haley’s effort to sue the department, including U.S. Rep. Joe Wilson (R–S.C.) The Savannah River Site, which is near the city of Aiken, falls in Wilson’s district, which is why he has continuously advocated for the MOX program. Wilson said South Carolina "accepted weapons-grade plutonium with the understanding that the federal government had an obligation for disposition and eventual transfer to a permanent repository." U.S. Sens. Tim Scott (R–S.C.) and Lindsey Graham (R–S.C.) also voiced their support for the project, with Graham repeatedly stating the state should pursue all options at its disposal.

Haley’s call to prevent more plutonium from coming to the state follows the December release of a DOE environmental assessment that addresses the department’s proposal to bring 900 kilograms of plutonium to the site for temporary storage. The plutonium would come from Japan and two European countries through the Global Threat Reduction Initiative. Moniz told Haley in a Jan. 19 letter that the agency’s efforts to use SRS to store more plutonium highlights the site’s capabilities. However, Haley hinted in her letter to Wilson that she disapproves of the potential acceptance of more plutonium. “DOE not only ignores the $1 million per fine rightfully and statutorily due to South Carolina, it outlines its plan to send additional plutonium to the Savannah River Site," Haley wrote.

The MOX project is likely headed into a rocky February, as there is widespread expectation that President Barack Obama’s fiscal 2017 budget proposal will include language in support of downblending – one of the MOX alternatives that would dilute the plutonium and ship it to the Waste Isolation Pilot Plant (WIPP) in New Mexico. But the transuranic waste storage facility has been shut down since February 2014 due to two separate incidents — a salt haul truck fire on Feb. 5 and the release of a small amount of radiation on Feb. 14. The Department of Energy is pushing to reopen WIPP in December of this year. The omnibus fiscal 2016 budget signed last month calls for Moniz to further review downblending and provide Obama with a report before he releases his budget proposal on Feb. 9.