Appeals Court Paves Path to Convert DoE Facility in South Carolina for Weapons Work

A federal appeals court on Tuesday effectively cleared the Department of Energy to cancel construction of a controversial plutonium disposal plant under construction in South Carolina.

The decision, which followed oral arguments before the U.S. Fourth Circuit Court of Appeals in late September, could result in the eventual loss of some 2,000 jobs at MOX Services, prime contractor for the Mixed Oxide Fuel Fabrication Facility (MFFF): an unfinished, over-budget plant designed to turn some 34 metric tons of surplus, weapon-usable plutonium into commercial nuclear reactor fuel.

The agency wants to turn the plant into a factory for building plutonium pits: the fissile cores of most modern nuclear weapons.

The Department of Energy has officially sought to cancel the MFFF since 2016, claiming the facility being built under contract to its semiautonomous National Nuclear Security Administration (NNSA) has become far too expensive to complete. In May, South Carolina sued in U.S. District Court to block the agency from halting construction. The District Court judge handed down a temporary injunction in June that did just that, but the NNSA immediately appealed the order.

On Tuesday, the three judges in a Fourth Circuit panel in Richmond, Va., appeared to accept the federal government’s argument that, among other things, South Carolina lacked legal grounds to sue the government over MFFF in the first place, and ordered the injunction lifted. The lawsuit will now continue in District Court, which had not filed any new notices in the case at deadline Tuesday for Weapons Complex Morning Briefing.

The appeals court handed down its decision a little less than a month after the NNSA reaffirmed to Congress that the agency would exercise its legal right, codified in the 2019 National Defense Authorization Act signed in August, to opt out of building the MFFF.

To get rid of the plutonium bound for MFFF, NNSA would build new facilities at Savannah River to prepare the weapon-grade material for burial deep underground at the Department of Energy's Waste Isolation Pilot Plant near Carlsbad, N.M. South Carolina and its congressional delegation have not embraced either plan, yet.

Meanwhile, a 2019 NNSA budget bill signed in September provided the lowest appropriation for MFFF in several years: $220 million for the fiscal year that started Oct. 1. That is the same amount of funding NNSA requested to cancel the facility.

The 2019 National Defense Authorization Act specified that NNSA could add to that total MFFF funding from previous fiscal years that has not been spent yet, but that directive would not matter to MOX Services if Congress accepts NNSA’s decision to opt out of building the facility.

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