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U.S. Supreme Court will not hear S.C. plutonium, MOX case

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The Mixed Oxide Fuel Fabrication Facility was more than a decade in the making when the National Nuclear Security Administration terminated the project late last year.

The U.S. Supreme Court will not hear a case tied to the long-term storage of plutonium in South Carolina, the federal rules surrounding it, and the relatively recent death of the Mixed Oxide Fuel Fabrication Facility, a never-finished nuclear fuel facility at the Savannah River Site.

The Supreme Court on Tuesday morning released its latest order list, which lays out appeals justices have privately conferenced and what matters the court will and will not take up. Docket No. 18-1531, South Carolina's plutonium case, was not selected.

The court offered no further comment. That's not unusual.

The denial from the high court seemingly serves as the final nail in the MOX coffin and signals South Carolina has exhausted its options. Any hope of reviving the MOX project is effectively dashed.

The Palmetto State, led by S.C. Attorney General Alan Wilson, in June petitioned the Supreme Court to examine a federal court ruling that the state lacked grounds to challenge the U.S. Department of Energy's MOX-killing procedures and the department's decision to move forward with another plutonium disposition method, dilute-and-dispose.

In a statement Tuesday, Wilson said the Supreme Court's decision to not hear the case was disappointing.

The court receives upward of 8,000 petitions each term – October through June or July. Only about 80 of those petitions are granted and heard.

South Carolina's initial petition detailed four "compelling reasons" why the Supreme Court should pay attention: purported conflict with several other established legal cases, conflict between other circuit courts, "constitutional issues" in regard to states' interests, and an opportunity to clarify another ruling.

Wilson in April said the state's legal team was deliberating a Supreme Court appeal.

"I only mentioned it here to let them know that it's a long shot, but it's still a possibility for us to do," he said at the time, referencing the 60 or so people who had gathered for his talk at Newberry Hall in downtown Aiken.

In July, U.S. Sen. Lindsey Graham, the South Carolina Republican heading up the powerful Senate Judiciary Committee, urged the Supreme Court to take the case.

"The federal government previously made legally binding commitments to the state of South Carolina in recognition of its sovereign status and its proprietary interests," reads his court-filed brief. "It has now breached those commitments, causing injury to the state that a court may redress."

MOX, the product of an 2000s-era international pact, was designed to turn at least 34 metric tons of weapons-grade plutonium into fuel for commercial reactors. The project was more than a decade in the making – past due, over budget and the subject of repeat congressional scrutiny – when it was axed in late 2018 by the National Nuclear Security Administration, a semiautonomous Energy Department weapons-and-nonproliferation agency.

The MOX project was terminated five months after U.S. Secretary of Energy Rick Perry notified Congress of his intent to do so and one day after the 4th U.S. Circuit Court of Appeals lifted an injunction shielding MOX construction and other related activities.

MOX employed more than 1,000 people at the time of its death. Project workers were laid off in waves.

The Energy Department had previously argued that keeping the halting project alive – on life support, essentially – cost taxpayers about $1.2 million a day.

South Carolina officials, in contrast, have long argued that ending the MOX venture would render the state a nuclear dumping ground.

Wilson on Tuesday promised to fight and not let that happen.

"Even though it has abandoned its commitment to build the MOX facility, they must still comply with federal law requiring the removal of plutonium from South Carolina – an issue the state has litigated and prevailed on," the attorney general said. "We will continue to do everything necessary to protect the citizens of our state and hold the federal government accountable under the law."

Metric tons of plutonium, only some of which were destined for MOX, remain at the Savannah River Site, about 30 minutes south of Aiken. The plutonium is kept at K-Area, a reworked and retrofitted reactor facility. 

A total 1 metric ton of weapons-grade plutonium was moved out of South Carolina earlier this year, satisfying a separate federal court order.

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