Environmental – Civil Practice – Preliminary Injunction – Administrative – MOX Plant

The federal defendants’ plan to stop work on the Savannah River Site (SRS) mixed oxide fuel fabrication facility project (MOX facility or project) would violate an international treaty and a federal statute and would harm South Carolina by causing the loss of a skilled workforce and by making the state a dumping ground for plutonium.

The court grants the state’s motion for a preliminary injunction, which maintains the status quo of ongoing work on the MOX project.

Pursuant to a treaty with Russia and 50 U.S.C. § 2566, SRS is being built to convert weapons-grade plutonium into plutonium suitable for commercial use. In a May 10, 2018, letter, the U.S. Department of Energy (DOE) asserted its intent to stop work on SRS.

Instead of MOX fabrication, the federal defendants propose a “dilute and dispose” (Dilute and Dispose) alternative, under which DOE would prepare surplus non-pit plutonium at SRS for disposal at the Waste Isolation Pilot Plant (WIPP) near Carlsbad, New Mexico. However, the Dilute and Dispose alternative does not adequately account for surplus plutonium at SRS.

Standing

The state has standing to challenge the federal defendants’ failure to comply with the National Environmental Policy Act (NEPA) because the state owns extensive property adjoining the affected area. It is the state’s environment that is placed at risk as a result of the federal defendants’ failure to comply with NEPA; therefore, the state has suffered an injury in fact.

Jurisdiction

Because the May 10 letter and the purported commitments and certifications set forth therein represent the final agency action to terminate the MOX Facility, and because this action has significant legal consequences, the state’s claims under the Administrative Procedure Act are justiciable.

Success on the Merits

The continued storage of plutonium at SRS constitutes a significant environmental impact that must be properly analyzed under NEPA. Since a December 1996 environmental impact statement (EIS), no evaluation has been undertaken that reviewed the storage at SRS of weapons-grade plutonium for a period longer than 50 years. The May 10 decisions regarding the MOX project are subject to NEPA and require a supplemental EIS.

Pursuing the Dilute and Dispose approach would have a significant impact on the environment. Therefore, the federal defendants must produce a supplemental EIS that addresses the conceivability of such a strategy. As such, the state will likely succeed on the merits of its claim that the May 10 decision violated NEPA.

There has been no NEPA analysis of the Dilute and Dispose approach or the storage of an additional 34 metric tons of weapons-grade plutonium at WIPP, and the EPA has stated that the requisite NEPA analyses and other studies for the storage of the plutonium at WIPP will take “many years.” Moreover, the federal defendants are not currently permitted to store an additional 34 metric tons of weapons-grade plutonium at WIPP.

The state is likely to demonstrate that a certification that the lifecycle cost estimates for the Dilute and Dispose approach and the MOX Project are of comparable accuracy cannot be made until a new estimate of the MOX approach following GAO best practices and using similar or comparable underlying assumptions to those used in the Dilute and Dispose approach is prepared. Therefore, the Secretary of Energy’s certification that the lifecycle estimates are of comparable accuracy is unsupported by the relevant data and does not meet the requirements of § 3121(b)(2) of the National Defense Authorization Act for Fiscal Year 2018 (NDAA FY18).

Section 3121(b)(1)(C) of the NDAA FY18 requires the Secretary to report to Congress “the details of any statutory or regulatory changes necessary to complete the alternative option.” The Secretary’s letter did not provide any details of the statutory and regulatory changes that are necessary to complete the proposed Dilute and Dispose approach; thus, the requirement has not been met.

The state is likely to succeed on its claim that the federal defendants’ decision to terminate the MOX facility is arbitrary and capricious in violation of NDAA FY18 and the Consolidated Appropriations Act for Fiscal Year 2018.

Irreparable Harm

Irreparable harm exists when agencies become entrenched in a decision uninformed by the proper NEPA process because they have made commitments or taken action to implement the uninformed decision.

If the proposed Full Stop Work Order is issued, the state will be robbed of the opportunity to obtain a meaningful judgment on the merits of its claims that the federal defendants’ decision to terminate the MOX facility and leave South Carolina as the permanent repository for plutonium is unlawful.

Given the demand for experienced and skilled craftsmen, the loss of the labor force will likely occur immediately. Therefore, the state will be the party to suffer the irreparable harm.

Balance of Equities

It is true that construction of the MOX facility is costing taxpayers $1.2 million per day; however, Congress has appropriated the funds and instructed the federal defendants to continue construction.

Because the MOX approach is the only method approved under the Plutonium Management and Disposition Agreement for plutonium disposition, the decision to terminate the MOX facility does not further the United States’ foreign policy interests. The federal defendants have previously recognized that the very path they not desire to take violates our nonproliferation agreement with Russia.

DOE is reneging on promises it made over the course of the last two decades. The MOX facility has not been timely built, no defense plutonium intended for MOX disposition has been removed from the state, and no monetary payments have been made. Further, the federal defendants have contested their statutory obligations to remove the plutonium and to make the monetary payments. Accordingly, the balance of equities or hardships related to the MOX facility weighs heavily for the state.

Public Interest

Requiring the government to act in accordance with the law is a public interest of the highest order. An injunction preventing the federal defendants from taking any action to terminate the MOX facility until NEPA compliance can be assured furthers the public interest.

Conclusion

Defendants’ partial stop work order is vacated, and the federal defendants are prevented from issuing a full stop work order unless otherwise determined by this court. The federal defendants are to maintain the status quo by continuing the MOX project.

South Carolina v. United States (Lawyers Weekly No. 002-118-18, 36 pp.) (J. Michelle Childs, J.) 1:18-cv-01431; Alan Wilson, John William Roberts, Randy Lowell, Robert Dewayne Cook and Thomas Parkin Hunter for plaintiff; Barbara Murcier Bowens and Martin Mason Tomlinson for defendants. D.S.C.