August 2002

Appeals Court Supports Plutonium Shipments

Environment News Service, Washington, DC, August 7, 2002

Original address:

[Posted 23/08/2002]

A federal appeals court has ruled that the Department of Energy (DOE) may continue to ship plutonium to South Carolina for conversion to mixed oxide (MOX) fuel.

The three judge panel from the U.S. 4th Circuit Court of Appeals denied South Carolina Governor Jim Hodges' appeal of a lower court ruling allowing the shipments to proceed. The judges' ruling was unanimous.

"We are pleased that the court (4th Circuit Court of Appeals) affirmed the lower court's ruling today which said that DOE's decisionmaking and actions on this matter complied with the law," said DOE spokesperson Joe Davis. "This Administration is committed to ensuring America's national security and the security of the people of South Carolina are maintained by proceeding with a program to dispose of weapons grade plutonium in a safe and responsible manner."

On Tuesday, Hodges vowed to take his case all the way to the U.S. Supreme Court.

"This weapons grade plutonium is a threat to the health and safety of our state," Hodges said. The governor said he plans to prepare a brief requesting that the Supreme Court hear the case.

The DOE intends to dispose of 34 metric tons of weapons grade plutonium by the end of 2019, through the conversion of the material to MOX fuel for use in commercial nuclear power reactors. The plutonium, pure enough to be used in nuclear weapons, is now located at Rocky Flats, at the Lawrence Livermore National Laboratory in California, and at the PANTEX Facility in Amarillo, Texas.

About 76 trailer loads of plutonium are expected to be shipped from Rocky Flats alone. The plutonium would be treated at the Savannah River Site near Aiken, in an as yet unbuilt conversion plant.

But the DOE's MOX program has been plagued by escalating costs, legal challenges and delays. In February, Duke Power, the utility selected to use the MOX fuel in its McGuire and Catawba reactors, testified before a Nuclear Regulatory Commission proceeding that "the future use of MOX fuel at McGuire and Catawba reactors is not a certainty. Substantial uncertainties and contingencies continued to surround the program."

Governor Hodges, a Democrat, has argued that the DOE has not done sufficient environmental studies to ensure that processing the plutonium into MOX would be safe, or that storing the plutonium in South Carolina - as might happen in the MOX program is terminated - would not harm the public or the environment.

The appeals court judges disagreed. "We are satisfied that the DOE took a 'hard look' at the environmental consequences," of shipping and treating the plutonium, the judges ruled, calling the DOE's plans "neither arbitrary nor capricious."

Hodges said the federal government has promised not to store the plutonium in his state, where it would be processed, but has failed to make a legally binding pledge. He is demanding a court decree enforcing the federal government's promise.

Critics of the MOX fuel proposal charge that burning MOX in nuclear reactors increases the public health risks from nuclear accidents, particularly when the reactors were not originally designed to burn MOX fuel.

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