Judge Throws Out Case Against Plutonium Shipments

By Cat Lazaroff

AIKEN, South Carolina, June 14, 2002 (ENS) - A federal judge has rejected South Carolina Governor Jim Hodges' legal challenge to the Energy Department's plans to ship 34 metric tons of surplus, weapons grade plutonium for conversion to fuel in South Carolina. Although Governor Hodges immediately filed an appeal, plutonium shipments could begin as early as this weekend.

Judge Cameron McGowan Currie dismissed the suit filed by the Democratic governor, ruling that the Department of Energy (DOE) completed the proper environmental studies before deciding to ship tons of plutonium from Colorado's Rocky Flats nuclear weapons complex to the Savannah River Site in South Carolina.

Governor Jim Hodges of South Carolina lost the first sortie in his legal battle to block plutonium shipments to his state. (Photo courtesy Office of the Governor)

The Energy Department said it would move forward with plans to ship almost 2,000 containers of plutonium from Rocky Flats - about 650 containers are already sealed and ready for shipment.

"We are very pleased with the court's ruling, which protects our national security as well as the people of South Carolina," said Energy Secretary Spencer Abraham. "The court decision allows DOE to move forward with plutonium shipments to South Carolina from Rocky Flats, Colorado, and the Department intends to proceed with those shipments."

Governor Hodges had argued that the DOE was required to complete a new environmental impact report after changing its plans for disposing of the surplus plutonium. Under a treaty with Russia, the United States is required to remove 34 metric tons of plutonium from circulation, rendering it unusable in nuclear weapons.

The DOE originally planned to immobilize some of the plutonium in glass, and turn the rest into a mixed oxide (MOX) fuel for nuclear power plants. That proposal was covered by environmental studies performed in 1996 and in at least two follow up reports.

But in January 2002, the DOE officially killed plans to immobilize the plutonium, saying all the surplus material would be turned into MOX fuel. The agency plans to build a special plant at the Savannah River Site to turn the plutonium into MOX, but that project is now behind schedule, and funding for the program is not guaranteed.

Governor Hodges fears that all 34 tons of plutonium could be stored in South Carolina indefinitely, and is seeking assurances that his state will not be turned into an ad hoc plutonium dump if the MOX project fails. He sought to block all plutonium shipments until additional environmental studies could be completed, and until the DOE provides a legally enforceable agreement to remove the plutonium if it is not turned into fuel by a negotiated deadline.

Cleanup worker handles wet combustible radioactive plutonium residue at the Rocky Flats nuclear facility. (Photo courtesy U.S. Dept of Energy)

The plutonium is destined to be stored in the K-area of the Savannah River Site, in a nuclear reactor built during the 1950s. Two tons of surplus plutonium used during nuclear weapons production and testing at Savannah River is already stored there, without the specialized packaging or treatment that new shipments must undergo.

"The plutonium coming in from Rocky Flats is stabilized and packaged, so it is safer than Savannah River Site's plutonium," noted Judge Currie.

Currie ruled that South Carolina will not suffer irreparable harm from the out of state plutonium shipments, and argued that delaying the shipments could cause trouble with Russia over the plutonium disposal treaty, and cost millions of dollars in cleanup expenses at Rocky Flats.

The judge's ruling puts Governor Hodges, who has pledged in the past to use state troopers, and even his own body, to block the plutonium shipments, in a difficult political position. Hodges' lawyers said Thursday that the governor does not intend to break the law, and lawyers for the DOE argued that attempts to block the shipments could be unconstitutional.

Moments after Judge Currie handed down her ruling, Hodges said his lawyers were filing an appeal at the federal appeals court in Virginia.

Local officials trained by the DOE inspect the loading of spent nuclear fuel onto a tractor trailer along the route to the Savannah River Site. (Photo courtesy NEI)

"This fight is not going to stop at a courthouse in Aiken," Hodges added. When asked whether he would order state troopers to block the plutonium shipments, Hodges said "we need to focus on our appeal," and quickly ended the news conference.

"If we lose, then the nation's weapons grade plutonium comes to South Carolina for long-term storage, and that's simply unacceptable," Hodges said. "I will continue to use every legal power that I have to make sure South Carolinians are taken care of and that our health and safety is protected."

The DOE said the court's decision "should help assure progress on the MOX program, which is vitally important to America's national security as well as the securing of nuclear materials in Russia."

Secretary Abraham said the DOE has already agreed to provide South Carolina with legislative protection against the permanent storage of plutonium, and supports a bill now before Congress that would set deadlines and authorize millions of dollars in fines if the plutonium is dumped in the state.

The McGuire Nuclear Power Plant in Mecklenburg County, North Carolina is one of two that the government plans to convert to burn MOX fuel. (Photo courtesy Nuclear Regulatory Commission)

"DOE intends that all of the plutonium coming into South Carolina will have a pathway out of the state," Abraham added.