South Carolina officials have turned to the U.S. Supreme Court in what could be a last-ditch effort to revive a controversial nuclear facility at the Savannah River Site and enforce federal rules related to storage, processing and removal of plutonium from the state.
S.C. Attorney General Alan Wilson, backed by a Columbia and Charleston law firm, filed a petition June 7 asking the high court to revisit cases and rulings tied to the October 2018 shutdown of the Mixed Oxide Fuel Fabrication Facility at SRS, a 310-square-mile nuclear reserve south of Aiken.
Specifically, South Carolina wants the Supreme Court to evaluate a federal appeals court ruling that found the state lacked standing to challenge the Energy Department’s decision to mothball MOX and move forward with another plutonium disposition method.
MOX was designed to turn 34 metric tons of weapons grade plutonium into fuel for commercial reactors, but the Energy Department opted to scuttle the still-incomplete facility after numerous delays and cost overruns. The department is now considering repurposing the unfinished building into a factory for cores that trigger nuclear weapons.
The MOX project was the product of a 2000s-era nuclear-disarmament agreement between the U.S. and Russia. Russia has since waved off the accord, raising concerns at the U.S. State Department.
South Carolina’s legal team has long argued the death of MOX would be widely detrimental, would render the state a permanent nuclear repository and would strand the plutonium already here. The team has also called into question the Energy Department’s environmental review process. The Trump administration sharply disagrees with their position.
Wilson in late April foreshadowed the recent petition while speaking to the Aiken Republican Club.
"We're looking at all our options," Wilson said, referencing the Supreme Court during his speech. "I don't know that it looks that great, but we have not given up."
MOX, more than a decade in the making, was under intense scrutiny when it was terminated by the National Nuclear Security Administration on Oct. 10, 2018. Secretary of Energy Rick Perry five months prior notified Congress of his intent to ax the venture. South Carolina has taken issue with Perry's waiver, which, among other things, committed the Energy Department to removing plutonium from SRS and the state, in general.
About 12 metric tons of surplus plutonium is currently stored at SRS, only some of which was destined for MOX, a NNSA official told the Aiken Standard in mid-May. Most of the MOX-bound defense plutonium never reached the site, the same official said.
The 4th U.S. Circuit Court of Appeals ruling, made late last year, lifted a lower court's intervention that had shielded MOX construction and other project activities.
The appeals-level ruling paved a path for MOX termination. And the NNSA seized the moment. One day after the ruling, the semi-autonomous agency delivered formal project termination notices to the contractor and guarantors.
The MOX project employed more than 1,000 people. The Energy Department has argued the lower court's action — keeping MOX alive — was costing taxpayers about $1.2 million a day.
South Carolina’s petition lays out “four compelling reasons” to garner the Supreme Court’s 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 court ruling.
A response to South Carolina's petition is due in July, according to court records.