MOX debacle: With South Carolina suing Department of Energy, the future of MOX facility remains unclear

By Luisa Kenausis, Scoville Fellow

For years, construction of the Mixed-Oxide (MOX) fuel fabrication facility at the Savannah River Site in South Carolina has been a thorn in the side of the Department of Energy. The program has been plagued by cost overruns and delayed schedules. The facility, which was originally slated to be constructed in three years at a cost of $1.6 billion, has now been under construction for 11 years at an estimated cost of nearly $7.7 billion. Billions of dollars over budget and years behind schedule, the program has come under Congressional scrutiny. Recently, there’s been a number of developments about the potential cancellation of the MOX project and the potential repurposing of the Savannah River Site facility for use in plutonium pit production. As of June 8, the MOX facility’s future remains unclear. (Editor’s note: See an update at the bottom of this post.)

In 2000, the United States signed a nonproliferation agreement with Russia, called the Plutonium Management and Disposition Agreement (PMDA). The PMDA requires both states to dispose of 34 metric tons of excess weapons-grade plutonium by combining it with uranium to produce mixed-oxide (MOX) fuel, which can then be used to power a nuclear reactor. This method of plutonium disposal was specified in the agreement in part because using MOX fuel in a reactor processes the plutonium in a way that prevents future use in a weapon. The MOX process causes the fuel to become radioactive, which then makes it difficult to handle safely and reduces the chance that it could be used in a nuclear weapon. However, while the Russian MOX fabrication facility construction effort stayed relatively on track (Russia’s MOX fabrication facility was officially launched in September 2015), the United States project has lagged due to both technical and organizational problems. (For a more comprehensive discussion of the United States—Russia plutonium disposition agreement and its status, see this 2016 article in the Bulletin of the Atomic Scientists.)

Due to the significant organizational and cost problems, both the Obama and Trump administrations sought to end the MOX project, a rare moment of agreement between the two administrations. Members of Congress have also indicated their interest in ending the project: last year’s annual defense spending bill (the National Defense Authorization Act for Fiscal Year 2018) includes a provision that allows the Secretary of Energy to execute a waiver to end construction on the MOX facility by certifying that an alternative plutonium disposition method would be pursued instead. However, the Secretary of Energy must prove that the alternative will cost less than approximately half of what remains to be done at the MOX facility. The alternative in question is the dilute-and-dispose method, which consists of diluting weapons-grade plutonium with unspecified (but non-radioactive) material and disposing the diluted material in a geologic repository.

On March 20, 2018, National Nuclear Security Administration (NNSA) chief Lisa Gordon-Hagerty said in testimony before a U.S. House Appropriations subcommittee that the MOX fabrication facility was “nowhere close” to being 50% complete, a bad omen for the future of the MOX project. She cited this assessment as coming from a federal project manager. Rep. Joe Wilson (R-S.C.) and Sen. Lindsey Graham (R-S.C.) have pushed back against assessments of the facility being far from completed, arguing that it is closer to 70% complete. Both members of Congress oppose shutting down the MOX facility due to concerns that abandoning the MOX program with no Congressionally-approved replacement in place would result in the loss of jobs and the site in South Carolina becoming a long-term depository for the weapons-grade plutonium currently stored there.

On May 10, 2018, Secretary of Energy Rick Perry wrote to Congress to indicate that he was executing the waiver included in the FY 2018 NDAA and ending construction of the MOX facility. He indicated in his letter that the Department of Energy would be relocating the plutonium currently stored in South Carolina to the Waste Isolation Pilot Plant (WIPP) in New Mexico to be handled using the dilute-and-dispose method. That same day, the NNSA released a statement recommending that the MOX facility at the Savannah River Site be repurposed to produce plutonium pits for nuclear weapons. This new program would support the DoD’s unexplained requirement for a pit production capacity of at least 80 pits per year by 2030.

A few days later on May 14, 2018, the NNSA ordered a partial stop-work order for the MOX facility. The partial stop-work order froze hiring, halted procurements, and prevented the beginning of any new construction on the site, but did not cause immediate layoffs. A full stop-work order, which would jeopardize 600-900 jobs, was planned to be issued on June 11, 2018. In response, a delegation of South Carolinian congressmen and the South Carolina Attorney General filed a lawsuit against the Department of Energy on May 25, 2018, challenging the legality of the waiver included in the FY 2018 NDAA.

A federal court heard arguments by the DOE and the South Carolinian delegation on Tuesday, June 5, 2018. The South Carolinians sought an injunction that would prevent the full stop-work order from taking effect on June 11 as planned. On June 7, the judge granted the injunction, which both vacates the previous partial stop-work order and prohibits the DOE from issuing a full stop-work order while the lawsuit is pending. The injunction orders the DOE to maintain the status quo by continuing the MOX project, and that’s where things stand as of today.

The judge’s reasoning for granting the injunction is worth examining in greater detail. She notes that Congress has not approved or authorized the dilute-and-dispose approach to replace MOX, and that ending the MOX project without an established, Congressionally-approved alternative would leave the United States without a disposal pathway for its weapons-grade plutonium. She also includes a key technical point regarding the terms of the Plutonium Management and Disposition Agreement signed with Russia in 2000. According to the terms of the PMDA, the plutonium must be disposed of by producing and then irradiating MOX fuel, which renders the plutonium unusable for weapons purposes. Alternative methods of plutonium disposal, including the dilute-and-dispose method now advocated by the DOE, are not approved in the agreement. Therefore, an end to the MOX project in the United States would amount to a failure to comply with — or even a violation of — the PMDA as it is currently written.

The terms of the PMDA have been changed in the past, but it is unclear whether or not the United States can realistically expect Russia to agree to allow dilute-and-dispose as an acceptable method of plutonium disposition. Unlike disposition via MOX fuel, dilute-and-dispose does not cause the plutonium to become unusable due to radiation, a technical issue that was of great importance when the PMDA was originally negotiated. As Pavel Podvig discusses in the article linked above, there are steps the United States could take to alleviate Russia’s technical concerns about dilute-and-dispose. Ultimately, though, Russia’s decision will be more political than technical. As the MOX project is not yet fully dead, the United States has not approached Russia to alter the terms of the PMDA. If and when MOX dies for good, the United States has two important challenges to address: Congress must approve and authorize funds to pursue the dilute-and-dispose method of plutonium disposition; and efforts must be made to amend the 2000 Plutonium Management and Disposition Agreement with Russia to permit dilute-and-dispose as an acceptable method of plutonium disposition.

UPDATE, June 26:

The long-awaited termination of the mismanaged MOX fuel fabrication project is the subject of an ongoing lawsuit, with the state of South Carolina suing the Department of Energy (DOE) in an attempt to prevent MOX construction from being halted. In the latest development, the DOE filed two actions on Friday, June 15 that seek to negate the effects of the preliminary injunction recently granted to South Carolina.

The injunction, which was granted on June 7, would prohibit the DOE from ending construction work on the MOX facility as planned, requiring that the “status quo” of construction continue while the lawsuit is pending. In response, the DOE has filed to appeal the injunction, and has also filed a request for the injunction to be set aside while the appeal is heard. As of Friday, June 23, it is not yet clear when the appeal might be heard in court.

In its appeal, the DOE argued that the injunction was granted despite a lack of evidence to support South Carolina’s claim that cancelling the MOX project would turn the Savannah River Site facility into a de facto dumping ground for weapons-grade plutonium. The appeal also argues that continuing construction of the MOX facility will interfere with the National Nuclear Security Administration’s plan to repurpose the Savannah River Site facility for plutonium pit production.

Analysis of the ongoing legal battle by advocacy group Savannah River Site Watch suggests that the DOE is likely to win this fight in the end, and MOX’s time may soon be up. Hopefully, we’ll get some solid answers in the coming weeks or months.