S.C.: DOE’s Hold of MOX Facility Construction Is Illegal

In a lawsuit filed on Tuesday, South Carolina has charged the Department of Energy (DOE) with “flouting” the law when it indefinitely suspended the mixed oxide (MOX) fuel fabrication facility under construction at the Savannah River Site (SRS) in Aiken County, S.C. 

The complaint stems from recent recommendations in the Obama administration’s fiscal year 2015 budget proposal that the behind-schedule, over-budget MOX facility be funded at a reduced level sufficient to place the project into “cold standby.” Though not specifically defined in that recommendation, the DOE’s expressed intentions for the facility are equivalent to an “indefinite suspension” of the facility before the end of fiscal year 2014, states South Carolina’s complaint.

But by taking steps to put the project into cold standby before the end of fiscal year 2014 and before finding an alternative disposal strategy, the DOE and the National Nuclear Security Administration (NNSA) “are acting in direct contravention of Congressional directive and instruction that the MOX facility continue to be constructed,” thereby violating the U.S. Constitution and federal law, South Carolina says.

Noble Beginnings, a Rash End

The MOX facility was conceptualized in 2000, when the U.S. and Russia entered into the Plutonium Management and Disposition Agreement (PMDA, amended in 2011), each nation agreeing to dispose of no less than 34 metric tons of weapons-grade plutonium. The DOE then recommended, and Congress in 2002 mandated, the construction of the facility at the DOE-owned SRS, first appropriating funds for the project in 2007. Construction began in August 2007.

The MOX facility is designed to remove impurities from plutonium feedstock obtained from nuclear weapon pits, form the plutonium into MOX fuel pellets, and fabricate pellets into fuel assemblies for use in a nuclear reactor. It is planned to be a reinforced concrete structure measuring about 600,000 square feet (including support buildings), and to include about 300 separate process systems using approximately 23,000 instruments and 85 miles of process piping.

South Carolina court documents estimate the facility is more than 60% complete. More than 1,800 employees have completed at least 12 of the facility’s 16 buildings, it says. As of April 2013, more than $1.8 billion in subcontracts for supplies, equipment, and services to more than 1,000 businesses had been awarded, using a total of $4 billion in funds appropriated by Congress since 2007.

But since 2007, when the DOE approved a cost estimate for the MOX facility of $4.8 billion with an anticipated start date in September 2016, costs to build the facility have skyrocketed to $7.7 billion. The start of operations has also been delayed to November 2019.

In a recent report, the Government Accountability Office pinpointed the staggering price hike and delays to the DOE’s approval of the cost and schedule while the design was only 58% complete. Cost increases have also been pegged to higher-than-anticipated costs to install equipment as cited by the MOX contractor in 2012 estimates.

A Nuclear Waste “Dumping Ground”

South Carolina’s primary complaint, however, is rooted in an agreement with the DOE that declares plutonium placed in the state is meant only for temporary storage to implement disposition. The state claims the NNSA in 2002 recognized that South Carolina is “counting on disposition as a means to avoid becoming a permanent ‘dumping ground’ for surplus weapons-grade plutonium by providing a pathway out of the site for plutonium brought there for disposition.”

According to South Carolina Attorney General Alan Wilson, the DOE’s termination of the MOX project is akin to its policy U-turn on the Yucca Mountain permanent waste repository. Reflecting the Obama administration’s opposition to the repository, the DOE in 2010 withdrew from the Nuclear Regulatory Commission its June 2008–submitted application to license the Nevada facility and moved to terminate the project.

“In that case the federal government, under an agreement with the states, collected billions of dollars for nuclear waste disposal and with the unilateral stroke of a pen the federal government effectively said, ‘You keep your nuclear waste and we will keep your money,'” said Wilson in a statement on Tuesday. “In that case, this office brought a suit which resulted in a federal court of appeals ruling that the administration ‘flouted’ the law. Today, the administration is flouting the law again in a similar fashion.”

South Carolina’s complaint also asserts that the administration’s “misuse of federal funds violates the fundamental tenet of separation of powers and it explicitly violates a federal statute prohibiting executive agencies from expending funds for purposes unauthorized by Congress.”

“Through the unilateral indefinite suspension of the MOX project without any plutonium disposal alternative—without any Congressional authorization or approval—and without any legal authority, the federal government has failed to not only honor its commitment to SC but has breached its obligation to responsibly address the disposal of surplus plutonium,” said Wilson.

—Sonal Patel, associate editor (@POWERmagazine, @sonalcpatel)