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Hodges sues DOE to stop plutonium shipments to state
By Tim Smith
COLUMBIA -- Gov. Jim Hodges sued the federal government Wednesday to stop plutonium shipments to South Carolina and asked a federal judge to require a new environmental review.
The U.S. Department of Energy intended to begin sending the highly radioactive metal to the Savannah River Site near Aiken in two weeks. A decision favorable to Hodges could delay the shipments for more than a year, the governor said.
"We cannot allow the U.S. Department of Energy to push us around," Hodges said. "I will continue to work to find a legislative solution, but the time has come to do everything possible to ensure plutonium is not shipped to SRS before that legislation becomes law."
U.S. Rep. Lindsey Graham has proposed legislation that would give the state $1 million a day if the Energy Department does not comply with an agreement to reprocess the material and ship it out of the state. Graham said Wednesday the lawsuit will fail and will make it more difficult to reach a compromise.
"To believe that today's lawsuit doesn't chill negotiations with DOE is unrealistic," Graham said.
Joe Davis, a spokesman for the agency, said he was "disappointed" in Hodges' actions.
"This action is totally inconsistent with a desire to work things out," he said. "We will continue working to solve the problem rather than engaging in political grandstanding for the cameras."
The 24-page lawsuit, filed in U.S. District Court in Aiken, alleges the Energy Department violated the National Environmental Policy Act by switching plans for handling plutonium at Savannah River earlier this year without filing an environmental impact statement. It asks the court to enjoin the agency from shipping the metal "until it complies with applicable law."
The Energy Department wants to send 34 tons of weapons-grade plutonium to the Aiken facility to begin a program of converting the former bomb material into fuel for commercial nuclear reactors. Officials hoped to build the mixed-oxide, or MOX, fuel plant at Savannah River by 2007. The first fuel would be produced in 2008.
The $3 billion program is to operate in tandem with MOX processing in Russia to reduce each nation's nuclear arsenal.
Hodges has sought a binding agreement by the Energy Department to remove the plutonium by a certain date because he said he fears problems with funding the MOX program could result in the agency using the state to dump surplus plutonium.
Graham's bill would give the state $1 million a day if the MOX plant does not produce at least one ton of fuel a year by certain dates. The penalty is an option in 2011 and becomes mandatory in 2017, when the government would have to remove all the plutonium it sent if the plant still does not produce at least one ton a year.
Hodges asked Graham Tuesday to toughen the bill by indexing fines to inflation, setting a date when all plutonium would be removed and halting shipments until legislation is passed.
According to the lawsuit, agency officials have changed the plans for handling plutonium several times and this year announced that plutonium may have to be stored at the site for more than 10 years. The Nuclear Regulatory Commission, which is reviewing the MOX plans, wants new environmental analysis because of the changes, according to the lawsuit.
Use of the MOX fuel also is shaky, according to the lawsuit. Duke Energy officials have stated the company's use of the fuel "is not a certainty," according to the lawsuit. The company has proposed using MOX in two South Carolina reactors, the only current commercial suitor for the fuel. The lawsuit says an environmental review is critical.
"There are numerous problems with using SRS for long-term storage, including its location close to surface and ground water, deficient buildings and the absence of important support facilities for long-term storage," the lawsuit states.
Hodges also asked that a judge revoke the national security exemption granted the Energy Department to transport containers that don't meet federal safety standards. The decision to use the exemption was "arbitrary, capricious and an abuse of discretion and is therefore illegal," according to the lawsuit.
The governor said he does not believe the agency needs to ship the plutonium soon but has picked the May 15 date to satisfy concerns by the contractor cleaning up the Colorado site and a U.S. senator from Colorado, who is running for re-election. The lawsuit states that the contract contains financial incentives for cleaning the site on time and that a former official of the firm is now undersecretary of the Energy Department.
"This isn't about national security," Hodges said. "This is about politics. I think we need to cut to the chase and address what's going on here."
Hodges said he believes the lawsuit will "throw a significant roadblock" in the push to ship plutonium, giving the state time to negotiate a binding guarantee. He said while he remains open to a legislative solution, he prefers a court decree.
He said he has hired two private lawyers, William Want and Lionel S. Lofton, both of Charleston, to represent the state in the matter because he was unsure how state Attorney General Charlie Condon felt about the issue.
Condon, a Republican running for governor, could not be reached for comment Wednesday.
Hodges faxed information about the lawsuit to members of the state's congressional delegation Wednesday afternoon.
U.S. Rep. John Spratt, a Democrat who also voiced objections to parts of Graham's bill this week, said the lawsuit "should not end the discussions that have been underway for the past several days."
U.S. Rep. Jim DeMint, a Greenville Republican, said he feels the best solution remains legislation in Congress.
"I urge the governor to continue to work in a bipartisan way with the congressional delegation and the Energy Department to finalize this agreement for the safety and benefit of South Carolina," he said.
-- Tim Smith can be reached at 803-256-7367.
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