U.S. Appeals Court Rules Energy Department Can Stop Building MOX Plant
WASHINGTON (October 9, 2018)—The U.S. Court of Appeals for the Fourth Circuit ruled today that the Department of Energy (DOE) may halt construction of its Mixed Oxide (MOX) Fuel Fabrication Facility in South Carolina, temporarily rejecting a lower court injunction compelling the DOE to continue building a facility it no longer intends to use. The injunction was in response to a lawsuit filed by the state of South Carolina to block the DOE from shutting down the MOX project.
Today’s order grants the DOE a stay of the lower court order pending a final decision on the appeal. But the court’s ruling suggests that the DOE will probably win.
“Using this type of facility to dispose of plutonium that is no longer needed for U.S. nuclear weapons increases the risk that this material could fall into the hands of terrorists,” said Edwin Lyman, a senior scientist with the Global Security Program at the Union of Concerned Scientists. “Although the order is only a temporary stay, it indicates that the court will likely rule against the South Carolina in favor of the DOE’s plan to terminate the MOX project and pursue a far superior alternative.”
The DOE started building the MOX plant at the Savannah River Site in 2007 to produce fuel for commercial nuclear power reactors from approximately 50 metric tons of excess plutonium. The agency pursued the MOX project even though its own analyses concluded it would be faster and cheaper to mix the plutonium with high-level radioactive waste from past weapons production and store it permanently in an underground repository.
The MOX project has been plagued by out-of-control costs and chronic delays. Its total estimated cost ballooned from $4 billion to more than $50 billion and its completion date jumped three decades, from 2016 to 2048. In 2015, the DOE decided to cancel the MOX program and start a direct disposal program instead, but the agency was stymied by MOX advocates in Congress, particularly South Carolina Sen. Lindsey Graham, who convinced their colleagues to pass a law requiring the DOE to continue building the MOX facility.
Congress finally gave the DOE the opportunity to cancel the facility earlier this year provided it could come up with an alternative for disposing of the plutonium that would cost less than half of the MOX project. Energy Secretary Rick Perry notified Congress in May that the agency identified such a method, called “dilute and dispose.” It would dilute the plutonium with an inert substance, package it in small quantities in waste drums, and then bury it at the Waste Isolation Pilot Plant (WIPP) underground repository in New Mexico.
The dilute-and-dispose plan satisfied Congress’ conditions for terminating MOX, but South Carolina sued the DOE in federal district court to block termination and won. The DOE appealed the decision to the Fourth Circuit Court of Appeals, arguing that the delay in shutting down MOX was forcing it to spend more than $1 million per day to build a facility it no longer wanted. Although today’s court of appeals order is a temporary stay of the district court order, it looks like the DOE will finally prevail in shutting down what amounted to a multibillion-dollar boondoggle.