The state of South Carolina is, again, planning to drag the U.S. Department of Energy back to court.
On Tuesday, S.C. Attorney General Alan Wilson sent U.S. Secretary of Energy Rick Perry a letter notifying him of incoming litigation – to be filed no later than Friday, Wilson wrote – regarding the Mixed Oxide Fuel Fabrication Facility at the Savannah River Site.
"On behalf of the state of South Carolina, please allow this letter to serve as notice of the imminent filing of litigation against the United States, the Department of Energy, the National Nuclear Security Administration and their respective officers in their official capacities by the state of South Carolina," Wilson wrote.
The state has successfully sued the DOE before.
Here it is — S.C. AG Alan Wilson notifying DOE (@ENERGY) of “imminent” legal action regarding Energy Secretary Rick Perry’s move to kill MOX (second attachment). Sources have told me May is going to be a big month for the imperiled facility @aikenstandard #sctweets #scnews pic.twitter.com/Wo1eggkK7U
— Colin Demarest (@demarest_colin) May 22, 2018
On May 10, Perry submitted a waiver to congressional defense committees that kills MOX, a roughly 70-percent finished facility. MOX is designed to turn weapons-grade plutonium – at least 34 metric tons, according to an international agreement – into commercial reactor fuel.
MOX was initially scheduled to open in 2016. The project is now more than a decade in the making and beyond its original $4.8 billion budget.
Perry's waiver certifies there is a more cost effective MOX alternative. Wilson's letter describes the waiver, which he said will be challenged, as "illegal," "arbitrary," "capricious" and "unsupportable by the facts."
The waiver also certifies the DOE's commitment to getting plutonium out of South Carolina, even if doing so requires moving plutonium elsewhere just for storage.
The energy secretary prescribed MOX a nearly $50 billion lifecycle cost in his waiver. Dilute-and-dispose, the MOX alternative Perry and NNSA chief Lisa Gordon-Hagerty have extolled, was prescribed a roughly $20 billion lifecycle cost in the same document.
On Monday, S.C. Governor's Nuclear Advisory Council Chairman Rick Lee questioned those figures and said they were worth looking into.
"I don't know how they came up with a number like that," Lee said. "So I'm looking forward to seeing the paperwork on this to see if it is believable."
S.C. Gov. Henry McMaster and U.S. Sen. Lindsey Graham, R-S.C., have previously, and publicly, ridiculed the dilute-and-dispose approach.
On Tuesday, U.S. Rep. Joe Wilson, another South Carolina Republican, described dilute-and-dispose as an "unproven alternative."
The delegation's letter references the plutonium pact by name: the Plutonium Management and Disposition Agreement.
“I support Attorney General Alan Wilson’s decision to pursue litigation," the Aiken-area congressman said. "We do not believe the alternative put forth by the NNSA ensures that the federal government will uphold their commitment to the people of South Carolina.”
McMaster has called dilute-and-dispose "not logical" and, in a May 2 letter to Perry, "only an idea." That May 2 letter from McMaster included threats of legal action if the DOE abandoned MOX.
Dilute-and-dispose is a process in which plutonium is mixed with inert material for off-site storage, in this case at the Waste Isolation Pilot Plant in New Mexico. That plan has raised environmental, security and permitting concerns among South Carolina's lawmakers.
A May 10 statement from a majority of South Carolina's congressional delegation condemned Perry's MOX-terminating maneuver.
"We are extremely disappointed to hear the Department of Energy plans to abandon the MOX program," the group wrote, later reprimanding the DOE for disbanding "one of the most important nonproliferation programs in the history of the world."
The collective statement was issued the same night the NNSA and the U.S. Department of Defense recommended turning MOX into a facility that would create plutonium pits – nuclear weapon triggers.
