Editor's Note: This is a follow up piece to the “MOX 101” article the Aiken Standard printed two weeks ago.

State and Congressional legislators have been using contractual agreements between the Department of Energy and the state of South Carolina as a line of defense to save the Savannah River Site's MOX facility.

Efforts have come as a response to President Barack Obama's highly controversial 2015 budget proposal which calls for placing the Mixed Oxide Fuel Fabrication Facility in a cold stand-by while officials explore less costly options to dispose of 34 metric tons of weapons-grade plutonium.

That action has been countered by the state of South Carolina – lead by S.C. Gov. Nikki Haley – suing DOE on the basis that the Energy Department is breaking contractual obligations.

In this article, the Aiken Standard reviews that notion by looking at the contracts and promises DOE has made with the state.

Agreement to remove plutonium from SRS

In an April 2002 agreement signed by DOE Secretary Spencer Abraham and South Carolina Gov. Jim Hodges, DOE made a commitment in bringing plutonium to SRS.

“DOE will transfer no plutonium to the Savannah River Site without a clear path out of South Carolina,” the energy department wrote in the agreement.

The issue with that agreement is that the year before, in 2001, DOE had already reneged on an earlier agreement to remove the plutonium if MOX failed.

The agreement was that if the project failed, the government would seal MOX material in glass cases and ship those materials to Yucca Mountain – a plan that was in the works to serve as a waste repository Site in Nevada.

The agreement also said that if the facility is not producing at least one metric ton of MOX per year by Jan. 1, 2009, the DOE Secretary would be required to remove at least one ton of weapons-grade plutonium from SRS by Jan. 1, 2011 and remove the same amount of plutonium shipped to SRS by Jan. 1, 2017.

With Yucca failing as a viable option, and with no plutonium reportedly leaving SRS, both of the agreements appear to have been broken by DOE.

Signing of defense bill

Later that year, in December 2002, President George W. Bush signed a defense bill which set timetables for the removal of the weapons-grade plutonium.

The timetables came with fines in place in case those milestones weren't met. One timetable is scheduled for a few years down the road in 2017.

The bill states that if the MOX program was not successfully operating by 2017, then all remaining plutonium must be removed immediately or a fine of $1 million a day would be applied, capping at $100 million a year.

U.S. Sen. Lindsey Graham, R-S.C., was in the House at the time and came up with the provision bill. At the time, Graham was quoted as saying the bill is meant to protect the state.

“The legislation provides unprecedented protections for the state,” Graham said at the time. “It has a requirement that all plutonium leave the state at a (certain date) if the MOX program fails, and those requirements are backed by unprecedented financial penalties for noncompliance.”

Promises from the DOE-SRS first annual report

The annual report came out in June 2004 by the Defense Nuclear Facilities Safety Board. The board reported that it would monitor MOX progression and provide a report each year before a Feb. 15 deadline.

“If a report indicates that construction or operation of the MOX facility is behind the applicable schedule by 12 months or more, the Secretary shall submit to Congress, no later than August 15 of the year in which the report was submitted, a plan for corrective actions to be implemented by the Secretary to ensure that the MOX facility project is capable of meeting the MOX production objective by January, 1 2009,” the report stated.

The Aiken Standard attempted to contact DOE to find out if the Department has indeed kept routine checks on the issue. Also, the Aiken Standard attempted to ask if DOE had been informing the federal government that the MOX facility project was incapable of meeting the MOX production objective. However, the Aiken Standard did not hear back from DOE before press time.

Derrek Asberry is a beat reporter with the Aiken Standard. He joined the paper in June. He is originally from Vidalia, Ga., and a graduate of Georgia Southern University. Follow him on Twitter @DerrekAsberry.